T’ruah

Court’s segregation decision

Halifax-based lawyer Hanna Garson. (photo from Hanna Garson)

In 2015, the B.C. Civil Liberties Association and the John Howard Society launched a legal challenge to the federal government’s laws that allow administrative segregation – a form of solitary confinement – in prisons, calling it a cruel and inhumane punishment that can lead isolated prisoners to harm and even kill themselves. They won their case in the B.C. Supreme Court in January 2018, a decision that was appealed by the government the next month. Last week, the B.C. Court of Appeal affirmed the unconstitutionality of provisions that allow indefinite and prolonged solitary confinement of prisoners.

In the January 2018 decision, the B.C. Supreme Court gave the federal government 12 months to pass new laws. In January 2019, the court gave the government an extension to April, but said certain stipulations had to come into effect immediately. Correctional Service Canada was ordered to take several steps, including giving prisoners in segregation more time outside, requiring daily visits from healthcare professionals, allowing inmates legal counsel in hearings related to solitary confinement, and changing the authorization system regarding the placement of an inmate in segregation for more than 15 days.

The federal government was given another extension after the April deadline, to the end of June. Then, on June 24, the B.C. Court of Appeal came out with its decision on the matter – rejecting the government’s appeal.

“This particular case is very interesting, as there are no actual individual complainants,” said Jewish community member Hanna Garson, a lawyer based in Halifax whose focus is ensuring that everyone is treated fairly by the justice system. “So, the court [was] being asked to decide whether or not the written laws themselves breach provisions of the Charter of Rights and Freedoms in Canada.”

According to Garson, sections of the Charter are indeed being breached when it comes to administrative segregation, especially as it comes with no time limit. “People are being put into segregation not knowing when, if ever, they’re going to get out,” she told the Independent. “That really plays on the mind.”

Noting that many people have mental illness or struggle with mental health before they are incarcerated, which “may have led to their negative interaction with the law,” she said, “That population, in particular, is very damaged by periods of segregation.”

The appeal court’s reasons for judgment, written by Justice Gregory Fitch, stated that the Corrections and Conditional Release Act violated Section 7 of the Charter, which protects an individual’s right to life, liberty and security of the person. The court “found that the harm caused by prolonged confinement in administrative segregation undermines the maintenance of institutional security, as well as the ultimate goal of achieving public protection by fostering the rehabilitation of offenders and their successful reintegration into the community.” It also “found that prolonged confinement in administrative segregation is not necessary to achieve the safety or security objectives that trigger its use.”

The judgment noted “that administrative segregation has a small, but significant, disproportionate effect on indigenous men and an even more significant effect on indigenous women” and that the “impugned laws” violated Section 15 of the Charter “to the extent that they authorize and effect a procedure that results in discrimination against aboriginal inmates.”

Section 15 states that, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Another issue, said Garson – who, in addition to being part of the firm Planetta Hughes LLP, is chair of the East Coast Prison Justice Society and is on the board of the Elizabeth Fry Society Mainland Nova Scotia – is that, while prisoners being placed in segregation have access to review boards, administrative segregation review boards consist of the same prison administration that placed them there. “So, it’s not an independent review and so, basically, the people who initially made the decision then question their own decision, which doesn’t necessarily secure a fair assessment of whether or not a person really needs to be segregated,” she said.

While legal counsel is permitted at these reviews, it is not provided in many provinces and few prisoners can afford representation or are not in a mental state of being able to request it, she said. “If you’re running a facility with hundreds of people who may be violent, I can understand a time-out for a moment to see what else needs to be done,” said Garson. “But, there needs to be a time limit and other solutions.

“Long-term, serious mental health treatments take far more expensive staff and thorough training. Are these better solutions though? Without a doubt, yes. Unfortunately, a lot of the constraints are budgetary and this is something that, oftentimes, courts are hesitant to rule on. But, for example, the court did say that, as it says in Section 15 [of the Charter], everyone has a right to be equal before the law and receive equal treatment of the law. So, the court does an assessment of whether or not people are being discriminated against by these laws.”

After hearing testimony and expert opinions, Garson said, “the court decided that both aboriginal people and people suffering from mental illness are segregated far more often … and that the impact on them is far more negative. But, it went further, ordering incarceration facilities to put in place better solutions – better programming that does not involve segregation.

“Usually, the court is hesitant to make decisions that would force the government to put more funding into something. But, it did in this decision, which is, in my opinion, really wonderful and a great precedent. This case is really groundbreaking and, to a certain extent, it was a wonderful thing that it was appealed.”

The B.C. Supreme Court said, “basically, we had to come up with new laws. But then, they suspended it for a year, as the government needs time to pass new bills and stuff like that. In the meantime, the attorney general appealed, because they don’t think it’s fair,” she said.

The Constitution of Canada, which includes the Canadian Charter of Rights and Freedoms, is the supreme law in Canada, she explained. Section 52 (1) of the Constitution Act 1982 mandates that any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The decision by the appeals court will become a binding precedent in all provinces, not only in British Columbia.

Garson emphasized that she is especially happy with the decision because it is one that has really considered the damage segregation does on the mental health of those being isolated and notes that, “if we really care about rehabilitation, then [segregation] makes no sense as a strategy, especially for those with mental illness.”

Because the court looked at the experiences of those who have been segregated and the decision will affect them, the system and society as a whole in the long-term, Garson said, “It’s more like a living document in that way, and it’s a very exciting case for this reason.”

As for where Jewish law falls on this matter, the organization T’ruah has been leading a campaign to abolish solitary confinement in the United States. In a 2014 report on the compliance of the United States with the United Nations Convention Against Torture, T’ruah notes, “The very first two chapters of our Torah teach us that every human being is created in the image of God, and that no human being should be alone. The practice of solitary confinement violates these principles and diminishes the divine image. It also violates one of the Torah’s central moral teachings, expressed in Leviticus 19:18, that one should ‘Love your neighbour as yourself.’ The rabbis explain that this is taught, so that no one can justify degrading treatment of a member of their community…. If you do thus, know that the person you have dishonoured was created in the image of God.”

The report argues that “Jewish tradition understands instinctively that humans are social creatures. In a story about a character who outlives his family, friends and study partners, the Talmud teaches, ‘Either companionship or death.’ Life alone is unbearable. Jewish law warns against excessive punishment, ‘lest your brother be degraded before your eyes.’ (Deuteronomy 25:3) Even a person who has committed a horrific crime must be regarded as a member of one’s own family and, therefore, deserving of dignity.”

T’ruah contends that Jewish criminal law seeks to inspire teshuvah (repentance) and that there are several principles that should hold in prisons:

“1. No matter his or her crime, the prisoner should be seen as our ‘brother or sister’ and treated with dignity.

“2. No human being should be alone for extended periods of time. Isolation diminishes the human being and can even be deadly.

“3. Prisons should seek to rehabilitate the prisoner and not simply to degrade him or her.

“4. A prisoner should have a fair trial before being placed in solitary confinement. Therefore, solitary confinement cannot be used for those in pre-trial detention.”

Rebeca Kuropatwa is a Winnipeg freelance writer.

Educating rabbinical students

T’ruah students help plant trees in the Hebron Hills. (photo from T’ruah)

U.S.-based T’ruah: The Rabbinic Call for Human Rights works in Jewish social justice circles in Israel and North America.

“We work with human rights of both Israelis and Palestinians…. We’ve also worked on introducing rabbis and rabbinical students, and also congregations, to what’s happening in West Bank and more,” executive director Rabbi Jill Jacobs told the Independent.

T’ruah, which supports a two-state solution, offers the Year-in-Israel program for rabbinical students.

“Students study in Jerusalem at various institutions,” said Jacobs, “but they don’t necessarily get to see human rights issues up close. We take them once a month to see a human rights issue on the ground, either in the West Bank with Palestinians, in Bedouin Israeli communities in the Negev, asylum seekers, etc.”

At these sessions, students meet with Israeli human rights and other leaders on the ground. The program is held during students’ free time, separate from their regular studies.

“The goal of the program is to help them develop a rabbinic moral voice,” said Jacobs. “As rabbis, they’re going to be called on to speak about Israel. The question is, how do they talk about Israel as a rabbi? Rabbis talk out of their values, and also are generally dealing with politically diverse communities…. So, the question is, how can a rabbi speak in a way that will push people to listen to perspectives they might not otherwise listen to, [based on] Jewish texts and Jewish values?”

Jacobs recognizes that the information they provide is not comprehensive. Their focus is to give students the opportunity to interact with human beings – to meet Palestinians, Bedouins and others and learn from them what their life experience is like.

“It’s also crucial to us that they are meeting with Israeli human rights leaders,” said Jacobs. “Very often, there’s a dichotomy that suggests that being pro-Israel means supporting the right-wing government of [Binyamin] Netanyahu and that being pro-Palestinian means being against Israel. We’re pro-human rights and we want them to meet Israelis working every single day to push for human rights in their own country because they love their country. We want them to see that there are actually people who are changing the situation.

photo - T’ruah students planting trees — T’ruah students planting trees. *(photo from T’ruah)*

“We hear a lot from the students that our program gives them hope. Sometimes, they are so hopeless about what is happening in Israel and then they meet people, both Jewish and Palestinian communities, who are trying to change their situation.”

One T’ruah graduate is Rabbi Philip Gibbs, spiritual leader of Congregation Har El in West Vancouver.

“During my year in Israel, during my second year of rabbinical school, I had the opportunity to then be a fellow with T’ruah for their rabbinical student program,” Gibbs told the Independent. “I really appreciated the opportunity, both because, at least the year I was doing it, there was clearly a huge focus on the Israeli-Palestinian conflict. But, also because the way, in terms of educating about social justice issues in Israel, they were able to show some of the other issues happening – whether it was meeting with Bedouins, talking to some asylum seekers from Africa … really seeing what their home-grown needs are and seeing how it developed into a strong sense of the how they were fighting for many of those needs through the legal systems in Israel.”

Gibbs met with Palestinians who had been displaced from the Jerusalem area after the 1967 war. “We had the chance to hear their narrative,” he said, “highlighting how their status as refugees during that conflict had really come into question because of both the policies of Jordan, as they were occupying the area, as well as some of the motivations of different settler organizations in their attempt to create a much stronger Jewish presence behind the Green Line… I felt like that was more educating us in understanding the way that the nature of a lot of these neighbourhoods had been going back and forth.

“For the Israeli settlers, they felt they were reclaiming a neighbourhood that was Jewish. For the Palestinians that had been living there, their legal status was caught up in layers of legal confusion of having that area under control of many different authorities over the past 150 years.”

Gibbs has not yet had an opportunity to bring this part of his rabbinical education to his congregation directly, but it has definitely played a role in how he shares his perspective regarding, for example, the upcoming Israeli election.

“I’m making sure there’s a deeper sense of having the recognition that a lot of these questions that are coming up, some of these issues are on the minds of most Israelis … but that, no matter what, a lot of the work that human rights organizations are doing, a lot of that is going through the overt legal system of Israeli government.”

Regarding the many Israelis he has met who work for human rights organizations, Gibbs said he appreciated the way their main motivation was a deep sense of trying to make their country the best it can be, noting that every government needs to be transparent in their treatment of their citizens, allowing for a certain amount of criticism.

“That’s something coming from a place of love and it’s the most ideal way to get things done in a constructive way,” said Gibbs. “People can debate about how much people living outside of Israel are supposed to be making any sort of direct intervention, which happens on both sides of the political spectrum, but, I think, there’s absolutely nothing that we should hide in terms of understanding the full array of political work happening in Israel.”

Rebeca Kuropatwa is a Winnipeg freelance writer.

Concern over incarceration

A new handbook published by T’ruah: The Rabbinic Call for Human Rights provides a resource for the Jewish community to press for change around the problem of mass incarceration in the United States.

“We are here to uphold ideas of redemption and mercy,” said T’ruah director of programs Rabbi Rachel Kahn-Troster, citing a colleague who described America’s prisons as having a “mercy deficit.”

The handbook is available for free download at truah.org/incarceration. It provides background and resources – steeped in Jewish texts and teachings – for Jewish communities to take action around these issues. Leading a network of 1,800 rabbis across North America, T’ruah aims to bring attention to an array of domestic social justice issues, as well as human rights for Israelis and Palestinians.

When it comes to mass incarceration, Canada doesn’t have the same problem, but we have similar societal ills when it comes to race, ethnicity and imprisonment – as well as problematic prison conditions themselves – that call out for redress.

The handbook initiative came out of T’ruah’s earlier work on ending solitary confinement. Over the last couple of years, Kahn-Troster has found the Jewish community to be increasingly receptive to grappling with issues around incarceration. Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, which details the effect that mass incarceration – and the subsequent denial of civil rights for convicted felons – has had on the African American community, really opened people’s eyes, she told the Independent.

Why the term mass incarceration? Compared to other countries, the United States imprisons its population at alarmingly high rates: 698 out of every 100,000 citizens are behind bars. For comparative purposes, Canada’s per capita rate is 141 out of 100,000, according to Statistics Canada.

And then there is the problem of race. African Americans are six times more likely to be jailed than their white counterparts, yet crime rates are not necessarily different. According to American Civil Liberties Union data cited in the T’ruah report, despite equal rates of actual usage, a black person in America is 3.73 times more likely as a white person to be arrested for drug use.

In Canada, blacks are incarcerated at three times their rate in society, according to the Office of Correctional the Investigator of Canada (OCIC). And, while only four percent of the population of Canada is aboriginal, 25% of the prison population is aboriginal. Among the female prison population, fully 36% are aboriginal, and these percentages are only increasing, according to CBC News reporting from January of this year. For aboriginal adults in Canada, the incarceration rate is 10 times higher than for non-aboriginal adults, says OCIC. Maclean’s, in February, quoted criminologists describing Canadian prisons as the country’s new “residential schools.”

In addition, a report from Saskatoon and Regina, cited in the Saskatoon StarPhoenix, revealed that indigenous students are 1.6 times more likely to be stopped on the street than non-indigenous students. A Toronto Star analysis revealed that, in Toronto, blacks are three times more likely to be stopped by police than non-blacks.

As the Supreme Court of Canada has noted, “courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and, of course, higher levels of incarceration for aboriginal peoples.”

The legacy of slavery in America looms large, and racial bias in the criminal justice system continues to haunt society. “People of color are more likely to be pulled over,” Kahn-Troster said. “The War on Drugs enables cops to search them. There’s a higher level of policing in black areas; there’s racial bias in jury selection; it’s easier to strike black people from juries; the sentencing is harsher if there’s a black perpetrator and a white victim than the other way around.”

In Canada, solitary confinement is an ongoing issue, as is overcrowding, concern over mental and physical health and rehabilitation, and an overall troubling rise in incarceration rates just as the crime rate lessens. Reporting in the Toronto Star puts the figure at a 17% increase in the federal prison population over the last decade.

With t’shuvah (repentance), cheshbon hanefesh (personal accounting), a questioning spirit and the search for social justice all core Jewish values, T’ruah’s initiative is laudable. It’s easy to look away – and harder to do the tough work of asking how we can both prevent harm to victims while improving our nation’s justice system to avoid discrimination and to shelter the most vulnerable.

Mira Sucharov is an associate professor of political science at Carleton University. She is a columnist for Canadian Jewish News and contributes to Haaretz and the Jewish Daily Forward, among other publications.