Apr 21, 2015
By Debora Senger
Order of Canada recipient Kim Pate was appointed by the University of Saskatchewan College of Law as the Ariel F. Sallows Chair in Human Rights in June of 2014.
The Ariel F. Sallows Chair in Human Rights was the first endowed chair in human rights to be established at a law school in Canada. It resulted from an estate gift agreement with the late Ariel F. Sallows, QC, in 1979.
But the inaugural one-year appointment is just one of many firsts for Pate, an esteemed advocate for social justice. To date, she has developed and taught human rights courses at three institutions—the University of Ottawa, Dalhousie University and the University of Saskatchewan—and has seen graduate law students who took her courses obtain social justice work.
In 2006, Pate joined the University of Ottawa Faculty of Law as the inaugural Law Foundation of Ontario Community Justice Fellow. There she developed the institution’s first prison law course, and together with Professor Elizabeth Sheehy, its first defending battered women on trial course.
Seven years later, Pate became the first faculty member to develop and teach an intensive prison law course at the Dalhousie University Schulich School of Law.
“At each of the institutions, there seems to be a ripple effect,” said Pate. “Students have gone on to do human rights work in other areas throughout the country.”
But this was not always the case, according to Pate.
“Historically there was not a lot of interest in doing any kind of work in and around prisons,” she said. “Although access to justice issues abound, there is very limited access to financial and other resources, such as legal aid. As a result, it is not generally considered an attractive or lucrative career for lawyers.”
However, this appears to be changing. Pate noted that one of the contributing factors for the change has been the development of human rights programs and courses for law students that are focused on providing educational and practical experiences to address the needs of women in prisons. This is evidenced by the production of the Human Rights in Action manual with, by and for women in and from federal prisons, for students in Dalhousie University (2013) and the University of Ottawa (2014) prison law courses, and for regional advocates with the Canadian Association of Elizabeth Fry Societies. Pate oversaw the development, translation and production of the manual.
“I think that prison law in particular is an area very few students get exposed to, except in some sentencing or criminal law classes,” said Pate. “And yet it can impact family law, criminal law, immigration, human rights and social justice issues.”
Today, students taking Pate’s prison law course at the University of Saskatchewan College of Law have a similar opportunity. In addition to prison law, Pate taught human rights and social justice, contributed guest lectures, and supported undergraduate and graduate students undertaking research in human rights, criminal and social justice.
The prison law course final exam requires that students update and present a human rights primer for prisoners. They are also producing a manual developed for and delivered to Saskatchewan prisoners. The manual will be distributed in partnership with the Community Legal Services for Saskatoon Inner City (CLASSIC.)
For Dan LeBlanc, a third-year law student, the reason for taking the human rights classes offered by Pate, was primarily the instructor herself. “I wanted to meet and spend time with Kim, to learn from someone who has been struggling for justice for a long time.”
In Pate’s prison law class, LeBlanc worked with colleagues to create and deliver a prisoners manual to those in provincial facilities. “The requirement to speak about complex legislation and regulations in a way that most prisoners can understand was a very helpful experience. An ability to communicate across the language barriers between lawyers and historically subjugated clients is an important skill for anyone interested in poverty law.”
Another invaluable takeaway from the course for Le Blanc was the importance of “discreet advocacy tactics … the ability to use secondary sources (such as the Arbour Commission Report) in convincing judges to advance prisoners’ rights.”
Judging from the national media coverage Le Blanc received for a paper he wrote on the Safer Communities and Neighbourhoods Act legislation (SCAN), applying these tactics work. “As a result of the story, Solidarity for Those in Solitary has received wider attention and following. I like to think it’s also shown an example of the way problematic laws such as SCAN can be used for good purposes.”
Craig Mracek, a second-year student, took Pate’s human rights and social justice course. Much like his colleague, Mracek noted that Pate’s teachings encouraged “introspection and critical independent thought.” And if you ask Mracek, “rarely are these attributes which are encouraged in law.”
In addition to these learnings, Mracek expressed appreciation for what he explained was a deviation from standard practice. “Most formal education systems – law included – follow a prescribed format: memorize and mimic,” he said. Moreover, Pate’s class offered much more than the ability to reiterate “social justice platitudes. She guided us on an introductory journey through some of the most pressing social justice issues of our time.”
While it may be too early to see the effect of Pate’s course offerings on future generations of lawyers, LeBlanc and Mracek believe the practical learning opportunities have prepared them for legal careers.
Pate agreed. “Students are learning from prison law that the law alone won’t change what happens. Often it requires the collaboration of many and the building of partnerships and coalitions to create or inspire the pressure of public opinion, of media, or of a coalition of other groups. Learning this and how to think creatively about the many opportunities to contribute to the development of law and policy is a feature of these courses.”
For Pate, satisfaction lies in knowing these law students will enter their profession “with new ideas about how to creatively challenge the law and develop new precedents for how they may contribute to and change the world.”
Photo: Kim Pate, Ariel F. Sallows Chair in Human Rights
Pate is currently the executive director of the Canadian Association of Elizabeth Fry Societies, a federation of autonomous societies that work with, and on behalf of, marginalized, victimized, criminalized and institutionalized women and girls throughout Canada. A lawyer and teacher by trade, she has completed post-graduate studies in the area of forensic mental health and has worked extensively with youth and men during her 30-year career in and around the Canadian legal and penal systems.
Throughout her distinguished career, Pate has received numerous awards for her work on equality and human rights as well as honorary doctorates from the University of Ottawa, Carleton University, Sir Wilfrid Laurier and St. Thomas University.
On Feb. 13 of this year, Pate was invested into the Order of Canada for “advocating on behalf of women who are marginalized, victimized or incarcerated, and for her research on women in the criminal justice system.”
Photo: Kim Pate, CM, (left) receives the Order of Canada from His Excellency the Right Honourable David Johnston Governor General of Canada. Photo credit: MCpl Vincent Carbonneau, Rideau Hall ©Her Majesty The Queen in Right of Canada represented by the Office of the Secretary to the Governor General (OSGG), 2015. Reproduced with permission of the OSGG, 2015.
To download a PDF version, please click: Kim Pate – Advocacy, Activism and Social Change for Women in Prison
L’auteure examine le taux augmentant de la criminalisation des femmes et des filles dans le monde et ce qu’il devrait être fait pour corriger les failles qui minent les efforts du système actuel pour réformer les individus et /ou les groupes de femmes quand ce sont les lois et les politiques dans lesquelles nous travaillons toutes qui viennent en conflit avec le peuple, particulièrement avec les femmes pauvres, discriminées racialement et les handicapées. Elle souhaite une coalition mondiale politique et socio-économique pour désinstitutionaliser et s’opposer aux complexes industriels que sont devenues les prisons.
I want to begin this article by honouring those women who have the lived experience about which we, your allies and co-activists, presume to speak. I urge you to continue to unite and together to challenge and hold us accountable for all we say and do, not just here, but in our daily work and lives, especially when we try to describe or represent your realities.
Given the urgency we all feel, or should feel, about the increased criminalization of women and girls worldwide, my hope is that we will truly engage and work to correct what is fundamentally flawed and wrong about current attempts to reform and correct or change individual and/or groups of women, when it is the laws and policies within which we all work that are increasingly coming in to conflict with people, especially poor, racialized, and disabled women. We have no choice but to challenge our pre-conceptions and therefore our approaches, responsibilities, language—in short, everything, about how we are working and envisioning the future.
Women are the fastest growing prison population worldwide and this is not accidental (Correctional Investigator). In Canada, we recognize that our links to the United States has meant that we were amongst the first countries to be impacted by the now globalized capitalist lunges for cash and products, which are occasioning the destruction of social safety nets—from social and health services to economic and education standards and availability (CAEFS 2006a; Davis 2005). As a result, the Canadian Association of Elizabeth Fry Society’s (CAEFS) mission has shifted to acknowlege the reality that it is the conflicts in peoples’ lives, created by these more restrictive and invasive laws and policies, that are increasingly resulting in the virtual inevitability of criminalization for growing numbers of the most vulnerable and marginalized nationally and globally.
Although crime and incarceration rates are on the decline, the rates at which women are criminalized and imprisoned are on the increase (CAEFS 2006a; Balfour and Comack). Statistics Canada reports that although crime rates have been dropping since 1996, the fear of crime and the criminalization of women and girls have both increased (see CAEFS 2006a). In fact, worldwide, women are the fastest growing prison population. In Canada, this is especially true for Aboriginal and other racialized women, poor women, and women with disabling mental health issues (Arbour; Correctional Investigator). This phenomenon coincides with the government budget cuts of the mid-1990s.
The decline in basic support systems for Canadian women, combined with our amplified reliance on the use of imprisonment, has resulted in the increased criminalization of women, especially those who are racialized and those with mental health and intellectual disabilities (Mauer; Human Rights Watch; Martin). In fact, women are the fastest growing prison population worldwide and this is not accidental. In Canada, we recognize that the now globalized destruction of social safety nets—from social and health services to economic and education standards—is resulting in the increased abandonment of the most vulnerable, marginalized, and oppressed. For example, it is incontrovertible at this stage, that since the 1996 elimination of the Canada Assistance Plan, we have witnessed in Canada the shredding of our social safety net.
In 2003, Canada was criticized by the United Nations Committee examining Canada’s record regarding the Convention on the Elimination of All Forms of Discrimination Against Women. Criticisms included: neglect of women, particularly with regards to social welfare, poverty, immigration policy; the treatment of Aboriginal women and trafficked women; lack of funding for equality test cases; and lack of funding for crisis services and shelters for victims of violence against women. Current and proposed criminal justice laws and policies are increasingly coming into conflict with peoples’ lives, resulting in the virtual inevitability of criminalization, pathologizing, homelessness, and even death of those who are most marginalized and disadvantaged by virtue of their sex, race, class, and/or disability.
Women are also often the victims of physical and sexual assault at the hands of family members, partners and even sometimes the police. Most incidents of violence against women are not reported to police, and those that are sometimes are not even recorded, often do not lead to a conviction, and rarely result in incapacitation. There are not only problems in recording and investigation, but also in court proceedings and sentencing practices, that have prevented the effective criminalization of the victimization of women (CAEFS 2006b).
There are no provinces where social assistance rates are actually adequate to support the poor. In order to survive, most people, especially poor mothers who are the sole supports of their families, are required to obtain income by means that would be considered fraudulent if social assistance authorities become aware of it. Accordingly, by creating criminally low welfare or social assistance rates, renaming it as workfare, and even placing bans on receipt of state resources, many poor people are immediately relegated to the criminalized underclass (Boulding et al.; Carlen 1998). Rather than resulting in the criminalization of poor women for welfare fraud, prostitution, drug trafficking or whatever other survival strategies are employed and the like, if we were truly interested in addressing fraudulent transactions that harm others, then criminally low welfare rates should result in the criminalization of those who craft, those who pass, and those who enforce the laws and policies, not those subjected to them.
Query the value of enabling the creation of laws and policies that effectively criminalize poverty, disabilities, and the resisters of colonization, and then developing classification, assessment, and correction tools that pretend that the individual members of those very groups of people who are grabbed, sucked or thrown into the criminal and correctional systems are there because of their planned, voluntary, and criminally intended actions.
They are not the cause of the greatest risks (real or perceived) to others, yet we continue to perpetuate the myth by focusing on risk oppressed assessments and correctional programs, when it is those responsible for and/or complicit in the destruction of our social safety net who are in the greatest need of correction. Just as people had to examine their own actions or inaction following the genocidal results of German policies and practices in the 1920s and 1930s, those who fail to address these matters will be faced with the reality that they too could be directly impacted, depending upon their personal, economical, and professional circumstances. It is simply not acceptable to merely hide our heads in the sand and wallow in despair, nor is it acceptable to set up new versions of the same old flawed system. Really, whom do we think we are fooling as we re-arrange the proverbial deck chairs on the Titanic as the system becomes more overwhelmed and sinks?
In the United Kingdom, noted policy leaders such as Pat Carlen and the Howard League are amongst those calling for decarceration and social (re)investment (Carlen 1994, 1998, 2002; The Howard League). I commend Angela Davis’ book entitled, Are Prisons Obsolete? (2003). Indeed, others besides Davis have also characterized the push to criminalize the most dispossessed as the present manifestation of race, ability, class, and gender bias, and argue that this demands we examine our fundamental beliefs and notions of whose interests and biases are privileged (Balfour and Comack; Christie; Reiman).
It seems ludicrous that we continue to pretend that telling women and girls not to take drugs to dull the pain of abuse, hunger or other devastation, or tell them that they must stop the behaviour that allowed them to survive poverty, abuse, disabilities, et cetera, in the face of no current or prospect of any income, housing, medical, educational or other supports. Surely releasing women and girls to the street with little more than psycho-social, cognitive skills or drug abstinence programming, along with the implicit judgment that they are in control of, and therefore responsible for, their situations, including their own criminalization. Many of us doing this work, myself included, reject and resist such notions.
In 1996, Canada decided to follow the U.S. lead when the federal government eliminated the Canada Assistance Plan and therefore the essential nature of Canadian standards of social, medical, and educational resourcing. We have now experienced the same sorts of cuts and knee-jerk, band-aid responses—all of which presume criminality and perpetuate the problems of the past, be they crime prevention, homelessness, restorative justice, or other responses.
Imagine the results if we instead decided to ensure that every prisoner learned about the history of the use of criminal law to colonize Aboriginal peoples and separate them from their land and culture, the criminalization of the indigent and homeless through laws prohibiting vagrancy and night walking, while simultaneously failing to condemn the abuse of power and force by police and prison personnel, the neglect of institutionalized persons. Imagine if we chose to reject current theories of crime and criminality and instead chose to focus on trying to prevent—and when unsuccessful punish—those who perpetrate the most harmful behaviours; those who wage war as well as those who hoard essential goods, make excess profits, irresponsibly and negligently handle toxic cargo, crimes against social harmony, economic, and/or even governmental order. What would the system look like if we prosecuted and sentenced people for lying while running for office, wrongful use of access to government power and public resources?
Too many of us spend our time vibrating between rage and despair as we strive to act in ways that will directly benefit and change the status quo for those most oppressed. Let’s use that anger to fuel our action, but let’s not stop there; let’s also decide to remember to celebrate our resisters and revolutionary thinkers and doers.
For each of us, this picture might look a little different. In Canada, we would focus on the Aboriginal women who have taken our federal government to the United Nations and forced them to look past the rhetoric from the official reports, causing Canada to drop from no. 1 to something like no. 7 in the world ratings of the standard of living for citizens (Corbiere v. Canada; International Covenant on Economic, Social and Cultural Rights). We would focus on the workers who led the Winnipeg general strike and other labour leaders who helped bring us our work weeks—and, perhaps more importantly, our weekends. We would toast the working-class feminist organizers who insisted that women and children no longer be considered the property of the men who sired or married, or “sired,” them, who insisted that violence against women and children must no longer be tolerated, while hiding those same women from the men who tried to kill them and their children. We would follow the young people who demand that we fight globalization and capitalism; the students in Quebec who went on strike this past year to fight the increased privatization of prisons, health care and education, and corresponding cuts to public funding of these essential services (Jones); the First Nations who blockade highways and logging roads to draw attention to the rape of the land; Canada’s pledge to Aboriginal women and women’s groups who for 20 years refused to accept “never” as an answer as they demanded that 500 missing and murdered Aboriginal women in Canada did not continue to be abandoned by the criminal injustice system and the penal industrial machine; the lawyers, Anne Derrick and Rocky Jones, who were sued and censured, even by some of their professional colleagues, when they labeled the racism of the police when they strip-searched three 12-year-old girls in a Halifax-area school (CBC News) and Corinne Sparks, the African Nova Scotian judge who took judicial notice of the racism of police (R.D.S. v. The Queen).
And the many youth, men, and especially the women prisoners who refuse to succumb, who will not stand-down or over, but instead walk with, their sisters inside; who courageously authorized the release to the media of what has now come to be known as the April 1994 incident, when women were illegally stripped and shackled when being transferred to a men’s prison, and then were held for nine months in isolation until the videotape of the degrading, humiliating, and illegal treatment they suffered was broadcast around the world (Arbour)!
It is the responsibility of each and every one of us to refuse to collude. It is always in our collective interest when the oppressed rise up to challenge their oppressors and oppression. Increasing prisoner access to the justice and equality occasioned by social inclusion will benefit all of us, and all of our communities of interest. If the State thinks shutting us out will silence us, they have not been paying attention! Telling us we can be part of the work on their terms and as long as we mind their Ps and Qs is asinine and insulting. It is also a show of who and what they stand for, and how uninterested they truly are in assisting women. It shows that they are all about power, control, and oppression and that they will try to smash anyone who challenges them. We cannot allow this to happen. Everyone should act now to express our outrage at simple-minded bully tactic and demonstrate that although they may keep trying to keep jailing the resisters, they won’t succeed in stopping the resistance.
To quote a perhaps over-used cliché—if you are not outraged, you’re not paying attention. If we become complacent, if we accept the status quo, if we do not daily challenge our paychecks—those of us who have them—and all of our other privileges, then we should do something else. We must all act and question how future generations will judge all of us if we fail to challenge the lawlessness of government officials and corporate interests, and join the growing worldwide political, economic, and social coalition to de-institutionalize and counter the prison industrial complex.
As Lilla Watson, an Aboriginal woman in Australia has stressed, we need to work together to correct current injustice. She said,
If you have come here
to help me,
you are wasting our time.
If you have come here because your liberation is bound up
then let us work together.
If our government does not think we deserve justice and equality, then we must be ungovernable.
Kim Pate, a teacher and lawyer by training, is also currently completing her Masters in Forensic Mental Health, teaching at the University of Ottawa, Faculty of Law, and recipient of an Ontario Law Foundation Justice Fellowship. She has been the national director of the Canadian Association of Elizabeth Fry Societies for the past 15 years. Most importantly, she is the proud mother of Michael and Madison, her hopes for the future.
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Balfour, G. and E. Comack. The Power to Criminalize: Violence, Inequality and the Law. Halifax: Fernwood Publishing, 2004.
Boulding, J. A., P. Evans, M. Little, E. Morrow, J. Mosher and N. Vanderplaats. Walking on Eggshells: Abused Women’s Experiences of Ontario’s Welfare System: Social Sciences and Humanities Research Council of Canada, 2004.
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R.D.S. v. The Queen,  3 S.C.R. 484,
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