The right to remain silent?

Early to rise, hard labour and frequent beatings – that was an inmate’s life at the Kingston Penitentiary during the 1840s.

Prisoners – men, women and children – were silent 24 hours a day. Breaking the silence could lead to a beating. Food was scarce, partly because the kitchen keeper was selling the prison’s food to guards. Malnourished inmates were poorly equipped for six days a week of hard labour.

In theory, the penitentiary was created to rehabilitate criminals. The reality was different: the first major investigation into Canada’s most famous prison found that not one administrator had even attempted to reform prisoners from their criminal ways.

Some things have changed since the 1840s, and some things haven’t. One thing that’s shifted: in the last decade, it’s prison agencies that seem to be keeping quiet.

Today, when a newsworthy event happens in a prison – such as a death in custody, a riot or other controversial incident – journalists have difficulty getting information. Many news stories read like a list of facts: neither the federal Correctional Service Canada (CSC) nor provincial prison agencies release many details. Again and again, prison agencies say privacy and security concerns limit what they can release about prisoners and prison activities. Access to Information requests often take months, sometimes years, to process.

Families of people in prisons struggle to get information about loved ones. In the past few years, even the Office of the Federal Investigator, Canada’s prison oversight agency, has had difficulty getting a timely response.

Despite this bleak trend, Canadian journalists and researchers still fight to report on the realities facing the 40,000 Canadians behind bars.

Ivan Zinger is executive director of the Office of the Correctional Investigator. His office recommends how to resolve issues brought to light by prisoner complaints – to wardens, the Correctional Commissioner and, if unsatisfied with those responses, the Prime Minister’s Office. –

Zinger’s office also looks at wide reaching prison issues: things like mental health care, overrepresentation of Indigenous people, and high levels of substance abuse. It also steps up to raise awareness, and has helped journalists and researchers get information CSC couldn’t – or wouldn’t – provide.

“We certainly have cases where Correctional Service Canada, because of security reasons, tend to redact an awful lot more than they need to,” says Zinger. “They have yet to really embrace and endorse open government policy.”

During Stephen Harper’s Conservative government, journalists’ access to prisons eroded. They could no longer visit and film inside prisons, and not having information disclosed became routine. Journalists and researchers turned to Zinger’s office for information.

While helpful, Zinger also has sympathy for some of CSC’s challenges processing information: it gets a huge number of Access to Information (ATI) requests, and has to “sift through thousands if not millions of pages a year” to remove sensitive information.

CSC was unable to arrange an interview but responded to questions submitted by email. During the last year, a spokesman wrote, CSC has “completed more than a third of our ATI requests in less than 30 days.” According to CSC, time is needed to consult other departments before completing most of the others.

Negotiating access

Justin Piché, an associate professor in the University of Ottawa’s department of Criminology, documented new prison infrastructure across Canada while during doctoral research in 2009.

“(CSC) is where requests go to die,” Piché says. “At least while I was filing them there.” Many of his Access to Information requests were delayed, waited out, or returned with huge redactions.

The federal prison budget numbers weren’t adding up; Piche’s research showed the budget nearly doubling. He revealed this on CBC’s Power and Politics, asking for answers. “Through that, people kept prodding – Opposition, critics and others – until this prison construction plan was revealed.”

The plan was costing Canadians $600 million. The federal government was constructing 34 additions to prisons and adding 2,500 beds.

“Even talking about infrastructure plans, prison agencies are very opaque institutions,” says Piché. “They hold their cards very closely.”

Piché was involved with a community of Access to Information researchers but took a break from the work when the Conservatives government – whose systemically tight control over information caused him so much grief – won a majority in 2011. “I just got so frustrated,” says Piché. “I’ll come back to it. There’s still some fight in me.”

The more things change

In the 1840s, word of the harsh conditions at the Kingston Penitentiary spread to George Brown, founder of the Globe newspaper in Toronto.

“The innovation (of the penitentiary) was supposed to be this technological and humanitarian leap forward,” says Ted McCoy, a Sociology instructor at the University of Calgary. “This failed really quickly.”

As a Liberal newspaperman, Brown was interested in anything that could drive a wedge between the public and the ruling Tory government. He wrote about prison conditions and stoked public outrage.

In 1849, he led a major investigation into conditions at the Penitentiary and the inquiry. The Brown Commission found prisoners were treated inhumanely and the administrators were corrupt.

Changes came, and prisons have evolved. “Food gets better, discipline gets more humane,” says McCoy. “People don’t starve or freeze to death as they once did.”

These changes are positive, but Canadian prisons still struggle to look at the reasons why people end up in prison: why those living in poverty, those facing mental health issues and Indigenous Canadians are more likely to be behind bars.

1,500 days of solitary

In October 2016, Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited the province’s Thunder Bay Jail. She met an Indigenous man who’s been in segregation without trial for four-and-a-half years: 23-year-old Adam Capay.

Capay was put in solitary in 2012 after killing another inmate, where he’s stayed ever since: more than 1,500 days. The U.N. considers more than 15 continuous days in segregation to be torture.

To Mandhane’s knowledge, 979 days is the longest time anyone has spent in Ontario’s segregation. It doesn’t make sense to her. “This is a person who in segregation has a history of self-harm, whose mental health is clearly deteriorating, but there was no meaningful treatment provided to him,” says Mandhane.

She announced what she had found, and Canadian media began covering Capay’s story.

His case, says Mandhane, reveals many of the flaws in the prison system. He’s a victim of inconsistent documentation and ineffective prison oversight, among other issues.

“There was basically not really any record of him,” says Martin Patriquin, a Maclean’s journalist who has written on prison issues. “It went without all the usual checks and balances.” Patriquin’s story Why Adam Capay has spent 1,560 days in solitary put segregation on the cover of the magazine’s November issue.

When Patriquin contacted Ontario’s prison agency, he found that they still weren’t certain how Capay had come to be in segregation for so long. “There was sort of a sense of bafflement,” says Patriquin.

Mandhane says it takes the public to make these issues political, and this is why journalists covering prisons matter for people like Adam Capay. His case has since sparked a national discussion on solitary confinement, petitions, and letters to Ontario’s Corrections Minister.

“I brought the issue forward,” Mandhane says, “but it was the public who actually forces the government to deal with it.”

Crime and Punishment, in Norway

Halden Prison in Norway has been proclaimed the world’s most humane prison. “We try to lower the feeling of being in a prison,” says Jan Strømnes, the prison’s deputy warden.

It’s not obvious that Halden is a high security prison: there’s security glass instead of bars, and rooms look like university dorms. Prisoners keep busy between school, work and rehabilitation; this helps keep violent incidents low at Halden, says Strømnes.

Inmates struggling with mental health issues – a significant number are – go to the county hospital, as anyone would, or visit the on-duty prison psychiatrist. Guards equipped with a two-year college degree in ethics, criminology and human rights, are in close contact with inmates.

When international media is given access to Halden, they can talk to anyone in the prison, staff and inmates, as long as the interviewees consent to their name or picture being published. “Nothing is secret in Halden Prison,” says Strømnes.

Should more prisons follow Halden’s lead? Strømnes believes they should. Ordinary prisons don’t include a recording studio or a grocery store.

Meanwhile, Halden will keep letting in international media, showing the world that prisoners can lose their liberty without losing their right to some semblance of normalcy.

Growing pains

A year into Justin Trudeau’s government, Ivan Zinger believes CSC is moving away from its longstanding default position: secrecy. In the past year it’s given more positive and thorough responses to the Office of the Federal Investigator.

“I think the marching orders have changed,” says Zinger. “Will it take a bit of time? Absolutely.”

Zinger says that transparency and accountability could be improved if CSC put more information online. If inmates’ personal information was removed, and databases that already exist were made available, journalists and researchers could get information while putting less strain on CSC.

People who determine what information can be released must also move towards adopting policies that embrace openness instead of the past’s default secrecy. According to its email, Correctional Service Canada is committing to making changes.

This year, Zinger’s office published a report, In the Dark, about CSC’s opaque way of dealing with the next of kin of people who died in custody. Responding to this report, CSC said it is changing “by using a dedicated team of ATIP (Access to Information and Privacy) experts who work closely with family members … to ensure this is done appropriately and consistently.”

“More information is always better,” says Zinger. “If you want to be a learning organization, you also have to from time to time expose conduct that may be problematic.”

A history of prisons in Canada

About the author

Julianne Steeves