Professor Michael Jackson is a longstanding member of the Faculty of Law at the University of British Columbia. He is also a graduate of Kings College, London and Yale Law School, a Queen’s Counsel and a greatly beloved grandfather. He has written several books and seminal reports tracking the state of human rights in Canada especially those incarcerated and aboriginal citizens. In 2010, he was the recipient of the Ed McIsaac Human Rights in Corrections award for his decades of work in promoting human rights for Canada’s most restricted citizens. Inkwell reached the professor on an anonymous south Pacific beach watching over his grandchildren.
1) You were at the very top of your class at King’s College. Usually those types of students find their clients on Fleet Street, not Hastings Street. What got you so interested in human rights?
It was while I was doing graduate work at Yale in the 60’s at the height of the US Civil Rights movement that I realized that lawyers had a responsibility to do something more with their lives than make lucrative careers for themselves. While teaching at the University of Chicago Law School I visited several US prisons and mental hospitals and when I came to Canada in 1970 I began research into the state of our prisons, focussing first on the disciplinary system and then the prison’s most severe form of punishment, solitary confinement- “the hole”
2) In your 1983 book “Prisoners of Isolation” you describe some horrific scenes from your first trips into Canadian prisons. What shocked you the most?
Initially the extreme physical harshness of the conditions in “the hole” in the old BC Penitentiary. The cells were virtually a concrete vault in which people were buried. The prisoner slept on a cement slab four inches off the floor; the slab was covered by a sheet of plywood upon which was laid a four-inch-thick foam pad. The cell was illuminated by a light that burned twenty-four hours a day. Prisoners only had cold water in their cells. Twice a week they were given a cup of what was supposed to be hot water for shaving, but which was usually lukewarm. They were not permitted to have their own razors, and one razor was shared among all the prisoners on the tier. Prisoners were confined in their concrete vaults for 23½ hours a day. Some prisoners had been so confined for over 3 years. They were allowed out of their cells briefly to pick up their meals from the tray at the entrance to the tier and for exercise. That exercise was not in the open air. It was limited to walking up and down the seventy-five-foot corridor in front of their cells. Exercise was taken under the continual supervision of an armed guard who patrolled on the elevated catwalk which ran the whole length of the tier and which was screened from the corridor by a wire-mesh fence. For the rest of the day prisoners were locked up in their cells. They had no opportunity to work; no hobby activities, no television programs, no movies, no sports, and no exercise equipment were permitted. Any visits with people from family or friends required the prisoners be strip searched, handcuffed to a restraining belt around the waist and that leg-irons be placed on them as they came down almost a hundred steps to the visiting area. Upon returning from the visit, prisoners were again subjected to skin-frisks, even though they never have left the sight of the escorting officer or had any physical contact with their visitors.
As I came to understand the regime better from talking to the prisoners, I realized that the physical harshness was not the worst thing about solitary confinement. What was more profound was the psychological torture that in some of the men (and women at the Kingston Prison for Women)) was manifested in their self mutilation by slashing their arms and throat and most horrifically reflected in the fact that two of the men I interviewed at the BC Pen had in the one case been driven into madness and the other case over the edge of madness to ending his own life. I discovered that in the solitary confinement unit the worst things about prisons -the humiliation and degradation of the prisoners, the frustration, the despair, the loneliness, and the deep sense of antagonism between the prisoners and the guards -are intensified. The images of the madness of solitary have never left me.
3) Every poll for the past five years shows that Canadians overwhelmingly want tougher penalties for crime, tougher prison environments — even the return of the death penalty. Why do you think that is?
That is an interesting question but the answer is even more interesting and will be surprising to both you and many of your readers. In 2007, the Department of Justice conducted a survey to measure public confidence during the initial stages of looking at the tough on crime legislation that the Conservative government wished to introduce and which was most recently reflected in the passage of Bill C-10 -the Safe Streets and Communities Act. The results of the survey was published as 2007 National Justice Survey: Tackling Crime and Public Confidence and you can read it on the Department’s website at http://www.justice.gc.ca/eng/pi/rs/rep-rap/2007/rr07_4/index.html
The Justice Department asked people what they thought of the objects of sentencing that are in the law, and those are: rehabilitation, reparation, accountability, specific deterrence, general deterrence, incapacitation, and denunciation. Rehabilitation was at the top, not the bottom of people’s priorities. Most people think if you do not rehabilitate people you have accomplished nothing. The second priority is reparation; do what you can to repair the harm to the victims. Third are accountability, then deterrence, specific and general; incapacitation and denunciation. That is quite consistent in other surveys that have been done. Contrary to government assertions therefore the public, when not confronted with the exceptional case of a particularly horrific crime, particularly one involving child victims, does not measure justice only, or even primarily, in terms of punitive responses.
4) You were recently in Ottawa to participate in the senate hearing on Bill C-10. Did you get any sort of feeling that the Omnibus Crime bill is just McCarthyism in a different hat?
What is most distressing about the government’s pushing through Bill C 10 is that the proposals for more mandatory minimum sentences, severely restricting the availability of alternatives to imprisonment in the form of conditional sentences, making pardons more expensive and difficult to obtain and giving the Correctional Service of Canada greater legislative powers to restrict prisoners’ human rights and privileges and toughen up the conditions of imprisonment -all invoked in the name of safer streets and communities- are not only hugely expensive, but counterproductive and fly in the face of the best social science evidence- including that of the Department of Justice and Correctional Service of Canada’s research branches – of what works to actually achieve that goal. The Government sweeps aside all this evidence by appealing to and heightening public fear of crime and offenders at a time when crime rates, including violent crime, are at historic lows. If your question was intended to suggest that offenders and prisoners have become the new targets and casualties in an assault on human rights. I fear you are right.
5) You were counsel in Delgumuukw, one of the most important aboriginal land claims case in Canadian history. How have our First Nations communities fared since then?
That is a very large question and I think we may have to leave it for another interview. However, I can comment on what has happened to Aboriginal peoples in the criminal justice system. Two years after the Supreme Court of Canada made its judgment in the Delgamuukw case, recognizing that Aboriginal title had not been extinguished in British Columbia and was a legally protected interest in the land, the court in 1999 in the Gladue case, citing a report I had written for the Canadian Bar Association, entitled “Locking up Natives in Canada”, referred to the overrepresentation of Aboriginal peoples in Canadian prisons as a “crisis in the criminal justice system ” and “a staggering injustice”. In the 23 years since that judgment the crisis has deepened and the overrepresentation has doubled. On March 23 of this year the Supreme Court in the Ipeelee case reaffirmed in strong terms the requirement that in sentencing Aboriginal offenders, courts must take into account the unique circumstances of Aboriginal peoples, including “cultural oppression, socially inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal peoples”. It is both a cruel irony and a measure of the government’s indifference to the best evidence of what contributes to public safety and justice, that one of the provisions in Bill C-10, enacted just a week before the Supreme Court of Canada’s judgment, severely restricts the use of conditional sentences, the principal sentencing tool judges have to address overrepresentation of Aboriginal peoples.
6) The 20th century Canada led the globe in promoting human rights. How are we doing so far in the 21st century?
In 2007 Canada had the undistinguished record of being one of only four countries that voted against the adoption by the United Nations General Assembly of the Declaration on the Rights of Indigenous Peoples. It was only in 2010, following considerable international and indigenous criticism, that Canada, with reservations, endorsed the Declaration. With the passage of Bill C-10, in its embrace of greater, longer, deeper and harsher use of imprisonment the government has undermined 40 years of progressive non-partisan criminal justice and corrections legislation and policy reforms. We do not have to labour over the hard lessons learnt from Abu Ghraib and Guantánamo Bay to understand the essential relationship between human rights and imprisonment. In Canada our own legacy of abuse, most recently exposed in the Correctional Investigator’s report on the death in segregation of nineteen year old Ashley Smith and in the continuing and increasing over-representation of Aboriginal prisoners should make it that we need constant vigilance and commitment to a culture of both law and practice that respects human dignity. Yet in the face of the documented record of the costly failure of other countries, particularly the United States who have gone down this path of escalating punitiveness, Canada is embarked on a deeply regressive path that will compromise and undermine our reputation in the ongoing struggle to promote and protect human rights.
7) What’s your favourite thing about babysitting grandkids?
It’s timely that you would ask that. The week in February that I was asked to go to speak at the Senate hearings on Bill C 10. I was spending the university midterm break with my grandchildren in Hawaii. I left them, flew back to Vancouver and went straight on to Ottawa. I began my presentation to the Senators by saying that when I told my grandchildren that I had to leave them and come to Ottawa to talk to some important people they said, “Papa, why do you have to go? Stay with us.” I tried to explain to them, not that I was going to talk about the importance of human rights and the Canadian criminal justice system; I said to them, “I have to go and talk to these important people about how we act in a respectful way to each other, how we treat each other with decency.” There was, however, a common element in talking with my grandchildren and talking to the Government these days; both don’t listen to what I have got to say, but my grandchildren are a whole lot more fun to be around.