There are some well-worn strategies the state uses to make organizing against state violence in meaningful ways difficult.
One is to treat issues as though they are completely separate, leading us to spend all our energy fighting one issue while the state is already mobilizing against us in another area. While we are fighting street checks, in the shadows civil liberties for prisoners are being dismantled. While we try to address the lockdown conditions during COVID-19 in jails and prisons, changes to the courts that limit access to justice are being conceived.
Connected to this strategy, issues are atomized so that we have to deal with tiny details of each violation, leaving us with little energy to uncover and move against new issues we may not even be aware of until it is too late. So it is that in 2021, we are still being forced to debate the legal details of street checks — spending years pushing for even an answer to the meaning of “suspicious activity” in the street checks exceptions — while new surveillance technologies are being implemented.
The objective here is to drain our energies, to limit organizing between groups (separating organizing against police from organizing against prisons from organizing against deportations, etc.) and to convince us that issues must be fought off one by one, limiting our effectiveness. While the state appears to concede power in one area, they are amassing it in another.
Here are some justice issues that have garnered little to no concern or attention to date, but that signify the future battles we will be fighting against state repression.
1. People on bail and court conditions prevented from living in Metro Housing
According to the “Metropolitan Regional Housing Authority (MRHA) Landlord Rules” dated June 16, 2015:
Tenants shall not use their unit for the purpose of meeting bail conditions, house arrest, or other legal proceedings, without the prior written permission of the Property Manager.
This policy is troubling for a number of reasons. People living in poverty are much more likely to face policing and criminalization. Police target low income areas, and people living in housing are much more likely to encounter police surveillance and checks. Limiting access to bail or community conditions for people in housing or their families is a form of “double punishment,” where first people are subjected to policing and are more likely to face charges and incarceration, and then subsequently face further penalties by being unable to meet bail or house arrest requirements. A parent living in the South End can offer bail to their child; a parent living in public housing does not have the same rights.
Black and Indigenous people are more likely to live in public housing. Both groups are over-represented in remand numbers. Placing public housing barriers on bail contributes to these populations being unable to get release. The province is supposed to be addressing remand numbers as part of tackling systemic racism in the justice system, but while institutional barriers to housing exist people are punished with jail time not because their crimes are worse, but simply because they lack resources.
Along with its discriminatory impact, this policy is also invasive to the privacy of families in public housing. Forcing residents to declare who is on conditions or facing court proceedings opens residents up for retaliation by managers.
According to Krista Higdon, a spokesperson for the Department of Municipal Affairs and Housing:
Individuals who may be granted bail or placed under house arrest should not feel that they are ineligible to stay in Public Housing. However, MRHA requires that tenants receive written permission in advance. If a tenant’s request is not approved, the tenant may appeal. The Residential Tenancies Board is also available to facilitate mediation of a dispute.
However, in court proceedings, property managers have indicated they do not grant permission under these circumstances. And in the time a resident is appealing to the Tenancies Board, their loved one is unable to access bail. Expecting people to engage in this kind of mediation process while they are also fighting legal charges is unrealistic and unfair.
Anecedotally, I was told this policy was put into place due to a shooting incident where both families lived in the same housing complex. If this is true, this is applying a broad brush to a problem that could be addressed by finding new housing for individual families rather than by instituting sweeping restrictions. I was also told in practice it has been limited to particular units in Dartmouth.
This issue seems to have flown completely under the radar, including even among people working at public housing. While it took me multiple emails to Metro Housing executives to receive any evidence or acknowledgement of this policy, it certainly is not unknown to provincial prosecutors, who have raised this policy in court in order to attempt to prevent people from being granted bail.
What is the chance of getting an appeal when people working in public housing claim they were not aware of this rule? Are there really robust processes in place for residents to appeal a policy that took me days (and emails to elected representatives) to even confirm?
People living in public housing and facing charges are unlikely to complain, and fear that if they speak out they can not only be evicted, but can face bans from all public housing across the municipality. People in public housing often report that landlords and managers already collaborate with police, social workers, and other state authorities to criminalize them. This policy adds yet another level of policing to those least able to defend against it.
Bill C-22 repeals certain mandatory minimums and penalties for possession of drugs. But what good is community sentencing if public housing refuses permission to people undergoing legal proceedings?
This policy should be removed immediately. People in public housing already face all kinds of barriers, restrictions, and invasive contact.
Nobody should be in jail just because of where they live.
2. New courthouse built in police station
A new courthouse is being built for jury trials scheduled to be opened on Wednesday, March 31. Due to COVID-19, court access has been limited, leading to the “requirement” for expanded space.
However, lawyers report that the new court in Burnside park is in a police station. This is concerning not in the least because of the apparent bias raised by this location. Jury selection is also being done in the Nova Centre, which is where the Crown office is. This would seem to have troubling implications for independence.
Courts are independent of both police and the Crown. But when people serving on juries come into the Crown prosecutors’ office to be selected, and then go to an actual police station for a trial, the supposed independence of the courts is completely lost on them. There is a physical, space-affirmed bias for the Crown and police, and therefore for conviction.
Victims of police violence are frequently charged with assaulting officers and resisting arrest. Attending court in a police station while attempting to challenge the police would be intimidating, to say the least. This is one obvious example of why this location is a problem.
Besides holding trials in police stations, the issue of court space has been troubling in other ways. We might ask ourselves why it is that we are so committed to incarceration that we would rather spend huge amounts of money in building more trial spaces rather than investing in diversion.
During the first wave of COVID-19, 41% of provincial prisoners were released from jail. While it costs $271 per day to keep people in provincial jail, it costs around $125 a day for supportive community housing. The COVID jail crisis showed us people can safely serve sentences in community, so why is it that we continue to resource punishment?
In the prosecution against the “Burnside 15” for a fight in the Central Nova Scotia Correctional Facility, the sheer number of accused, plus their lawyers, and the sheriffs accompanying each accused person means no existing courtroom can accommodate the trial. Without severing the trials (which is likely to happen,) millions of dollars would be required to build new court space.
It’s dubious whether the underlying facts of the case match the severity of the charges brought by the crown. Charging people in a jail fight with conspiracy to commit murder means that since the charges are some of the most serious in the criminal code (Section 469), the onus to establish whether someone should be released pre-trial is placed on the accused, rather than on the crown. This means that nobody involved in the fight has received bail. It remains to be seen whether these charges will be sustained.
Perhaps rather than potentially spend millions of dollars on building huge courtrooms in the name of deterrence, money would be better spent addressing the conditions in Burnside. Violence spikes in institutions as conditions worsen. The solution is not harsh charges and removal of liberties, it is addressing the underlying issues of mental health, stressful confinement, lack of programming, and poor physical conditions that have existed for years in the facility.
3. The “behaviour range” at Burnside jail
The subject of multiple unsuccessful habeas corpus applications, the restricted range has repeatedly been accepted by judges as a reasonable security measure.
Prisoners living on the range, however, report arbitrary rules about when they are placed on the range and unclear practices for releasing people. Based on calls to the East Coast Prison Justice Society phone line, Black and Indigenous people appear to be more likely to be placed on the range, which matches the evidence in the 2014 report of the Correctional Investigator demonstrating that Black prisoners are over-disciplined when subjective judgements about behaviour are used.
Prisoners also report abuses by staff, lack of access to legal calls, and not receiving mandated exercise time (a minimum of half an hour outside a day) in violation of the Correctional Services Act.
Canada claims to have eliminated solitary confinement in federal prisons. In reality, segregation practices have worsened at all levels, including in provincial jails. Before COVID-19, provincial prisoners experienced a steady erosion of liberties, with lockdowns becoming the “new normal.” These conditions have only accelerated with the pandemic. Simply renaming segregation and denying it exists does not eliminate the harmful conditions and its effects.
Reports from prisoners about arbitrary conditions on the range recall case management protocols applied to incarcerated women, which presented unclear and shifting requirements for women placed on restrictive conditions. Women reported being denied toilet paper and tampons, or being forced to clean their floors with their facecloth, while being told only that they would be granted more privileges once their behaviour improved. A woman might “behave” for a month, and then roll her eyes at staff and find herself placed back into the most restrictive conditions. This protocol led to reported self-harm among the women subjected to its regime and was implicated in Ashley Smith’s death.
Using subjective, shifting, and inconsistent disciplinary practices undermines due process and fairness. As one person on the range told me, “They threw me in here and said, change your behaviour. How am I supposed to change if there’s no programming, there’s no social worker, I asked for mental health, nothing. How does just making it worse change anything?”
It is disappointing that these cases have repeatedly been rejected in court as judges defer to the claims of correctional authorities over the consistent experiences of incarcerated people. Reports have shown that corrections officials are often not forthcoming about the conditions in jail and their confinement practices. Giving them the benefit of the doubt and allowing them to restrict liberties of prisoners essentially unsupervised marks a disturbing trend towards ever-increasing violations of prisoner rights in the name of “safety” and “security.”
4. Proposed limitations on habeas corpus
One of the few avenues available to incarcerated people to challenge the conditions of their confinement is a habeas corpus application. Since these applications are rarely funded by Legal Aid, prisoners confronting the jail must represent themselves. Without legal education or access to case law (and often lacking high school education), with little or no access to a legal library, and coming from restrictive conditions that affect their mental health, prisoners must appear against fully-trained lawyers representing the facility.
These applications got a boost in May, 2020 in the Pratt decision. In lawyer Hanna Garson’s summary of the case:
Pratt’s habeas corpus application, in October 2018, challenged the lawfulness of his continued close confinement, alleging that: he was not provided reasons for his close confinement, he was not provided a date for release and that he was being held past the 10-day maximum. He filed his application from the segregation cell in which he was confined and was self-represented…
…Based on the paper application of Pratt and the oral submissions made during a teleconference motion for directions between Pratt and the representative for the respondent — the attorney general of Nova Scotia, Justice Rosinski dismissed Pratt’s application for mootness. Meaning, Pratt was not given the opportunity to argue the unlawfulness of his placement in segregation on its merits. Nor was he provided the opportunity to argue that his habeas corpus should be heard despite mootness — an issue frequently argued on its merits in habeas corpus applications as situations in correctional facilities change frequently and are thus evasive of review.
Pratt, during this conference call, alerted Justice Rosinski several times that he had not received the disciplinary records on which the respondent was relying to justify his current close confinement and that he had not been provided procedural fairness…
Justice Rosinski rendered the oral decision to dismiss Pratt’s application at the conclusion of the teleconference. However, after rendering his oral decision, Justice Rosinski — without including Pratt in the communications — sought additional materials from counsel for the attorney general. Justice Rosinski engaged in “numerous communications” with counsel for the AG, none of which included Pratt.
This communication included, among other things, a request for the law and policies governing the close confinement of Pratt, as well as an explanation of an e-mail from the deputy superintendent regarding Pratt’s continued placement in the close confinement unit. Counsel for the respondent forwarded applicable law and policy to Justice Rosinski and provided an explanation regarding the e-mail but in regards to the wrong prisoner (an error later corrected). Justice Rosinski was also provided disciplinary reports about Pratt as well as other documents from his correctional file. Pratt was not provided this information, nor given the opportunity to respond…
Pratt, represented by Claire McNeil, appealed the decision and won. That appeal led to a widening of access to the courts for incarcerated people.
Now, alarmingly, a Habeas Corpus Working Group has been convened to propose various amendments to the Civil Procedure Rules relating to these applications. Shockingly, included in the working group is Justice Rosinski, whose ruling was comprehensively smacked down at the Court of Appeal, and who was revealed to have engaged in conduct colluding with the correctional facility that can at best be characterized as unfair. The impression given by his appointment to the committee is that this is an attempt to get around a Court of Appeals decision through limiting court access by other means.
The working group argues that their purpose is to make the process more efficient, characterizing improper applications as costly and wasting court time. But if the courts are indeed submerged by applications that have no merit, surely the solution is providing incarcerated people with legal advice and support rather than preventing them from getting to court.
To pursue a habeas claim, prisoners must fill out a form where they express in legal terms how their liberty is being restricted or failures in due process or procedure. Many prisoners lack literacy, and for any person untrained in the law, knowing the right language to use to express their experiences can be impossible.
Bad habeas applications are not an indication of prisoners abusing the system; they are a symptom of people lacking resources and the ability to be have themselves heard and believed.
Prisoners who file habeas claims risk retaliation, and are often punished for challenging the institution. Prisoners are unlikely to file claims just for the fun of it given the dangers they potentially place themselves in usually for no change in their circumstances (jails will, for example, tell the court the conditions have been lifted, and then simply re-instate these conditions once the complaint is dismissed).
Many of these claims are brought by African Nova Scotian prisoners, including Maurice Pratt. Systemic racism in the justice system is enforced not only by policing and by courts, but also in prison disciplinary systems that single out Black people for disproportionate punishment. Removing access to the courts for people already failed by educational and social systems intensifies the racism Black prisoners already experience.
Rather than suggesting prisoners are wasting court time, we would do better to spend resources on external, independent, investigation of the notoriously terrible conditions in provincial jails. Repeated testimony from incarcerated people, lawyers, advocates, and family members confirms the truth revealed in habeas applications.
It is not the prisoners’ applications that are inadequate, it is a court that dismisses and disbelieves them. Civil liberties for marginalized people should be expanded, not restricted.
5. “Modernizing” the courts
Modernization is good, right? I have written many times before about the danger of our belief that social problems can be solved by technology. The number of beatings and killings by police of Black people caught on camera vs. the actual conviction rates of police officers indicates that no amount of investing in new technology solves state violence.
During COVID-19, courts have relied upon video appearances to keep running. In the name of “efficiency” (see above story about proposed amendments to habeas), there is a lot of rhetoric around “modernizing” the courts through increased video appearances and reduction of oral argument in favour of more written submissions.
While video court can be helpful in granting access to the courts in rural communities, adopting new technologies is not necessarily a universal good.
Efficiency may be a goal trumpeted by corporations in the neoliberal age, but justice should prioritize thoughtfulness and thoroughness over speed. Appearing in court can be important for a number of reasons: communicating with your lawyer during proceedings; not having to testify while inside a carceral institution that may be violating your rights; being able to see family and friends and have them bear witness to proceedings; being able to more easily follow the hearing, etc.
In addition, as Black people know from using Zoom, darker skin tones do not present the same on video as lighter skin. Prisoners do not have the luxury of ring lights. Black people already are read as less remorseful, and more dangerous and threatening. Video appearances in lighting and with cameras that obscure Black people’s features may contribute towards Black people being read as more guilty.
“Modernizing” the courts also seems to come along with building more courtrooms, spending hundreds of millions on state-of-the-art new jails (now with braille on every cell!), and otherwise increasing the scope of punishment.
Perhaps we could actually modernize by not continuing to rely on strategies of punishment that do nothing to reduce crime or keep communities safe, and that pour resources into punishing people that could be spent on building up communities.
Don’t want overloaded courts? Stop charging people and putting them in jail for addiction, mental health, and poverty for a start.
6. The cost of surveillance
I wrote here about my criticisms of the province investing money in electronic monitoring of people on bail. Bracelets have become common in Ontario for people on bail, house arrest, or immigration conditions. We should be alarmed that the practice is growing in Nova Scotia, not least because people subjected to monitoring must pay for the bracelets themselves.
It costs over $500 to get a bracelet installed (plus a $200 fee charged to be held against future non-payment), and then around $500 per month for as long as the bracelet must be worn. Given the slow pace of the courts, people may be paying for up to two years, costing them tens of thousands of dollars.
Where is this money supposed to come from? If you must come up with money or your loved one stays in jail, families will make virtually any sacrifice. Legal Aid does offer some subsidies for bracelets, but this scale is dependent on how much has already been pledged for bail — meaning that families who are already scraping together large amounts of money find themselves ineligible for support precisely because they already provided a huge payment.
There is a growing movement to end cash bail, acknowledging the disproportionate burden placed on people already denied resources and living in poverty.
Surely people’s lives and freedoms should not be a business. The costs of surveillance should be borne by the province if it is deemed necessary and not by those being subjected to monitoring.
Downloading the costs of incarceration onto families is reminiscent of Victorian debtors’ prisons. We seem to be “modernizing” by moving backwards at an ever-faster rate.
• • •
Sadly, despite the length of this article, these are only some of the various crises advocates for justice are battling even as we are confronted with ongoing public egregious acts of violent racism by police. And as we spend days or weeks trying to even get an answer from the police about what happened — never mind any accountability — while we are not looking the scene is being set behind our backs for future violations of our rights in multiple other areas.
Fighting the state is not impossible, but it requires mass mobilizing and a combining of our energies. As long as we can be occupied fighting in separate spheres while being run around by the promises of meetings, task forces, apologies, or training, we will continue to find ourselves continuously reacting to injustice once the conditions are already set.
We cannot afford to waste time and energy arguing about useless reform solutions while police, courts, and correctional institutions put in place more restrictions, harsher conditions, and continually limit our ability to seek justice and cost us decades to challenge. We must organize now.
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