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Ripple Effect: The relationship between law, advocacy and the criminal justice system

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Ripple Effect: The relationship between law, advocacy and the criminal justice system

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

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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.”

Kim Pate

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. 

Advocacy, Activism and Social Change for Women in Prison – by Kim Pate

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

with mine,

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.

References

Arbour, L. Commission of Inquiry into Certain Events at the Prison for Women in Kingston. Ottawa: Public Works and Government Services Canada, 1996.

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.

Canadian Association of Elizabeth Fry Societies (CAEFS). Community Op­tions Required. Fact Sheets. 2006a. Online: http://www.elizabethfry.ca/eweek06/pdf/commopt.pdf. Re­trieved January 10, 2007.

Canadian Association of Elizabeth Fry Societies (CAEFS). Violence Against Women and Children. 2006b. Online: http://www.eliza­bethfry.ca/eweek06/pdf/violence.pdf. Retrieved January 10, 2007.

Carlen, P. “Why Study Women’s Im­prisonment? Or Anyone Else’s?” Prisons in Context. Eds. R. D. King and M. Maguire. New York: Ox­ford University Press Inc., 1994. 131-140.

Carlen, P. Sledgehammer: Women’s Imprisonment at the Millenium. Chippenham: Antony Rowe Ltd., 1998.

Carlen, P. Women and Punishment: The Struggle for Justice. London: Willan Publishing, 2002.

CBC News. Rocky Jones and Anne Der­rick Lose Defamation Case. 2001. Online: www.cbc.ca/news/story/20 01/05/10/ns_lawset010510.html. Retrieved May 10, 2001.

Christie, N. Crime Control as In­dustry: Towards Gulags Western Style 3rd ed. London: Routledge, 2004.

Corbiere v. Canada (Minister of Indi­an and Northern Affairs), [1999] 2 S.C.R. 203.

Correctional Investigator. Annual Re­port of the Office of the Correctional Investigator 2005-2006. Ottawa: Government of Canada, 2006.

Davis, A. Y. Abolition Democracy: Be­yond Empire, Prisons and Torture. New York: Seven Stories Press, 2005.

Davis, A. Y. Are Prisons Obsolete? New York: Seven Stories Press, 2003.

Human Rights Watch. Ill-Equipped: U.S. Prisons and Offenders with Mental Health Illness. Washington, DC, 2003. Online: http://hrw.org/reports/2003/usa1003/3.htm#_Toc51489445. Retrieved May 4, 2004.

Howard League, The. The Howard League for Penal Reform. 2006. Online: www.howardleague.org/. Retrieved Jan.10, 2007.

International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 11(1).

Jones, K. Quebec: Student Strikes Exemplify Mounting Social Discon­tent. 2005. Online: http://www.wsws.org/articles/2005/mar2005/queb-m15.shtml. Retrieved Au­gust 10, 2006.

Martin, M. “Critics say new state prison defies logic.” San Francisco Chronicle January 5th, 2004.

Mauer, M. Comparative Interna­tional Rates of Incarceration: An Examination of Causes and Trends. Washington, D.C.: The Sentenc­ing Project, 2003.

R.D.S. v. The Queen, [1997] 3 S.C.R. 484,

Reiman, J. The Rich Get Richer and the Poor Get Prison. 3rd ed. New York: Macmillan Publishing Co., 1990.