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A Contradictory and Finishing State

Explaining Recent Prison Capacity Expansion in Canada’s Provinces and Territories
Justin Piché

Résumé

Through an analysis of published and unpublished documents authored by or submitted to penal system functionaries, this paper shows how over 6,300 new prisoner beds in the process of coming online in Canada’s provinces and territories are mostly being built to address longstanding growth in the number and proportion of remanded prisoners. The role played by bureaucratic actors and appointed advisors who advanced proposals on how elected officials could address facility crowding and the needs of a so-called changing prisoner profile in a context of risk aversion – including tabling recommendations to construct new prison spaces – is documented. In so doing, it is shown how humanitarian and rehabilitative concerns operate alongside other logics of incarceration that are often said to be more punitive, contributing to the perpetuation of current levels of imprisonment and seeding the ground for future carceral growth. In light of these findings, this paper concludes with a discussion on how recent developments in the Canadian context raise questions about previous scholarly explanations of prison capacity expansion and proposes paths for future research on this topic.

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Géographique :

Canada

Chronologique :

XXIe siècle
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Texte intégral

A version of this paper was presented during the inaugural Workshop on the Development of Criminological Knowledge, which was organized by Richard Dubé of the research committee from the Department of Criminology at the University of Ottawa. I would like to thank those who were present at this event and who offered their feedback on my paper, including Nicolas Carrier (Carleton University) who served as the primary critic. Sarah Heath (University of Ottawa) and Nicole Myers (Simon Fraser University) also provided comments on this paper. All errors and omissions, however, are my own. I also wish to acknowledge the Social Sciences and Humanities Research Council of Canada for supporting this research, as well as Rabia Mzouji for translating this article into French.

Introduction

  • 1 For details concerning on-going federal penal infrastructure development see infra.
  • 2 The federal government is responsible for the imprisonment of individuals sentenced to terms of imp (...)

1In October 2009 I began to seek information about the construction of new prison spaces in Canada. To this end I conducted an online content search, made informal information requests by phone and email, and filed formal requests under access to information and freedom of information protocols. By October 2011, I discovered that provincial and territorial (PT) governments were in the process of establishing 22 new prisons and 17 additions to existing facilities. After facility closures, over 6,300 additional prisoner beds will be operational once these penal infrastructure projects are completed (Piché, 2012a).1 With a daily average of 13,507 remanded and 9,964 sentenced prisoners in 2008-2009 (Calverley, 2010, 19) held in PT institutions, these developments represent a sizeable expansion in the ability of Canadian provinces and territories to carry-out their incarceration mandates. These governments are responsible for the detention of individuals awaiting bail determination, trial and sentencing (referred to as remanded prisoners hereon after), as well as those sentenced to terms of imprisonment of two-years-less-a-day.2

2Often with little to no public consultation, many of these prison capacity expansion initiatives came to light once the shovels broke ground. With these shovels came carefully constructed press releases and other promotional strategies such as websites highlighting various aspects of the projects. The enhancement of “public safety” through the establishment of “modern” and “secure” facilities, the promise of short-term construction jobs and long-term careers in the punishment sector, and the occasional emphasis on the “green” aspects of the new buildings – that will, at the very least, recycle many of the bodies upon which their creation and survival depends – were commonly heard refrains in the sanitized marketing campaigns for infrastructure that facilitates the infliction of pain (Piché, 2012b).

  • 3 While the term punitive turn is commonly used to describe recent expansionary trends in penality th (...)

3In the literatures that critically interrogate punishment, the construction of new prison spaces has been discussed in two significant ways. First, there have been studies that locate prison capacity expansion as being a consequence of rising rates of incarceration associated with the introduction of harsher sentencing measures (e.g. Page, 2011). Second, there are studies that conceptualize this phenomenon as being an integral driver of rising prison populations for the purposes of capital accumulation – both economic and political – in regions ravaged by the flight of jobs and resources to jurisdictions elsewhere in the world under neo-liberalism (e.g. Gilmore, 2007). These explanations are useful for working towards an understanding of prison capacity expansion in contexts where considerable penal intensification3 is observed, such as the two studies referred to above that examine mass incarceration in California.

4With this said, how can we make sense of the creation of new penal infrastructure in contexts where rates of imprisonment have remained relatively stable for over a half-century such as Canada (see Doob, Webster, 2006)? Are these projects being driven by and/or driving a reconfiguration of a penal system increasingly oriented towards deterrence, incapacitation, ‘just deserts’ and denunciation? Are these initiatives the outcome of a process led by opportunistic politicians intent on getting votes and corporate elites seeking more profits by expanding prison stocks?

5Through an analysis of published and unpublished documents authored by or submitted to PT penal system functionaries, I show how the more than 6,300 new prisoner beds that are in the process of coming online in Canada’s provinces and territories are mostly being built to address longstanding growth in the number and proportion of individuals remanded into custody. I also document how bureaucratic actors and appointed advisors, operating in a context of generalized risk aversion across the penal system, advanced proposals on how elected officials could address facility crowding and the needs of a so-called changing prisoner profile, including tabling recommendations to construct new prison spaces. In so doing, I illustrate how humanitarian and rehabilitative concerns operate alongside other logics of incarceration that are often said to be more punitive, contributing to the perpetuation of current levels of imprisonment and seeding the ground for future carceral growth at a time when overall rates of police-reported victimization continue to decline (see Brennan, 2012). In light of these findings, this paper concludes with a discussion on how recent developments in the Canadian context raise questions about the limits of previous scholarly explanations of prison capacity expansion and proposes paths for future research on this topic.

1. Examining Prison Construction

6With the ascendancy of the United States as a global leader in incarceration rates in the past number of decades (Jones, Mauer, 2013), much of the literature on the construction of new prison spaces is focused on developments in the American context. Given that the production of knowledge in support of state repression has (Cohen, 1988) and continues to be central to the criminological enterprise (Young, 2011), it should come as no surprise that there are a number of academics that have embraced and aimed to facilitate the establishment of new penal infrastructure to warehouse the growing number of criminalized individuals. As evidence of the collateral consequences of mass incarceration in the United States came to light (e.g. Mauer, Chesney-Lind, 2002), a number of studies have also been conducted by scholars that have critiqued and sought to produce knowledge aimed at resisting prison construction as an integral component of carceral growth. In this section, relevant works from each of these orientations are discussed as a means of situating the approach I used to make sense of prison capacity expansion currently underway in the Canadian context.

1.1. Embracing and Refining Prison Capacity Expansion

7Popper (1981, 12) coined the term locally unwanted land uses (LULUs) to describe facilities said to be vital to the functioning of a community by their proponents, but that are subject to local opposition where they are built due to their undesirable impacts, ranging from environmental to social consequences. Proposed prisons have often been considered to be LULUs subject to opposition from prospective neighbouring businesses and residents (Sechrest, 1992). This not in my backyard (NIMBY) phenomenon became the focus of American facility siting research in the 1980s and 1990s, as various jurisdictions sought to build new prisons to warehouse the rapidly increasing number of prisoners sentenced to longer terms of incarceration with fewer chances of community custody prior to the expiry of their warrants. Studies that embrace, or do not question the need for, the construction of additional spaces of confinement facilitate these initiatives in two ways.

  • 4 During a panel held at the 2012 Annual Meeting of the American Society of Criminology titled Issues (...)

8First, there are research projects that seek to provide data with the goal of neutralizing negative representations of prisons advanced by opponents of new penal infrastructure (e.g. Groot, 2012)4. These studies focus on the range of points of contestation raised by concerned citizens in prospective prison towns, which include the impact of these facilities on local economies, ‘crime’ rates and the identities of communities. At the height of the American carceral boom, much of this research appeared in government reports such as those commissioned by the Wisconsin Division of Corrections and Bureau of Facilities Management (Stanley, 1978), the National Institute of Corrections (Abrams, Lyons, 1987), the National Institute of Justice (Houk, 1987), and the Salem Police Department (Caillier, Versteeg, 1988). This work also appeared in publications for penal system practitioners including the American Bar Association Journal (Silas, 1984), Corrections Today (Travis, Sheridan, 1983, 1986) and Federal Probation (Rogers, Haimes, 1987; Carlson, 1990). While many of these studies were limited to the presentation of projections and short-term findings, they failed to provide the methodological details required for study replication, and did not compare trends in communities where no prisons had been constructed (McShane et al., 1992). Despite this, the conclusions they reached were presented as well-founded research and used to manufacture consent around prison construction projects. Among these claims was that new prisons contribute to the economic well-being of host communities through the creation of jobs, increasing property tax revenues, as well as generating local economic activity, while not decreasing surrounding property values or affecting a rise in local ‘crime’ rates. When presented with such a bill of goods, it is understandable that such projects found support in many communities in the United States that experienced significant unemployment as American agricultural and manufacturing jobs moved elsewhere as globalization intensified (Gilmore, 2007).

9Another way that criminological knowledge has been mobilized to meet the “utilitarian” needs of imprisonment proponents who seek to minimize the prospect for, and impact of, local opposition to their prison capacity expansion plans has been to search for the best method of prison site selection (McShane et al., 1992, 106). For example, a number of studies that appeared in a special issue of Crime & Delinquency (see Krause, 1992a, 1992b; Carlson, 1992; Sechrest, 1992; Shichor, 1992) identified approaches to establishing the location of new prisons that either reduced or augmented the likelihood for local opposition to the developments. A study examining local perceptions of the siting of a new federal penitentiary for women in Kitchener, Ontario published in the Correctional Service of Canada’s (CSC) Forum on Corrections Research journal is an example of similar research conducted in the Canadian context (see Druar et al., 1998).

10Whether one is a proponent or opponent of prison building, these studies are of interest as they shed light on the rhetorical and procedural strategies that are used by those who seek to further entrench incarceration in the form of more brick and mortar. Left unexamined in this body of work are the arguments and processes through which support for new spaces of confinement is mobilized behind closed doors prior to the approval of penal infrastructure projects by legislators and their eventual disclosure to the citizens whose interests they claim to represent. Before explaining why and how this study addresses this gap in the literature, I briefly review studies that take an oppositional stance to such state repression campaigns.

1.2. Critiquing and Resisting Prison Capacity Expansion

11While some researchers were busy assisting ‘correctional’ authorities with refining their tactics and messages used to sell mass incarceration in the United States, other scholars became interested in critiquing the role of capital interests and economic motives as a means to undermine the legitimacy of this prison boom. Researchers who have taken this normative stance most often draw on materialist approaches to understanding social, political and economic developments to make sense of prison expansion in the American context at a time of declining ‘crime’ rates (e.g. Dyer, 2000).

12One of the significant lines of inquiry guiding these studies is the examination of how localities, some of whom were once opposed to prisons in their backyards, began to welcome and even lobby for these facilities to reap the assumed benefits associated with such projects in times of economic turmoil (e.g. Welch, 2003; Gilmore, 2007; Gotham, Haubert, 2007; Greene, 2007; Schept, 2012, 2013). A shortcoming of some of this scholarship (e.g. Christie, 2000), that largely problematizes prison construction on these grounds, is its retention of similar assumptions with studies that are complicit in carceral expansion. In these cases, scholars of both normative persuasions have not conducted adequate research to verify whether such projects actually contribute to long-term economic renewal and growth in host communities.

13To address this gap in knowledge, a number of studies have been undertaken. Such work includes an extensive literature and statistical review by Huling (2002), along with research involving the comparison of counties with prisons to similar counties without prisons by Hooks et al. (2004), Mosher et al. (2007), Glasmeier, Farrigan (2007). In contrast with research conducted in the 1980s and 1990s, these studies have yielded surprising results, showing how the introduction of a prison in one’s locality can reduce employment prospects. These works have also found that prison construction projects can divert resources towards the development of infrastructure around ‘correctional’ properties, leaving few resources available to attract businesses in other sectors. The introduction of a new prison in a community can also result in the failure of small shops and restaurants as chains such as Wal-mart and McDonalds are introduced to local markets.

14Studies examining prison construction in the United States, such as those summarized above, offer important tools to locate the role these initiatives play in neo-liberal state restructuring and vice-versa, as well as whether the actual economic impacts of these projects match the rhetoric that is used to make them more palatable to affected parties. In some cases, scholars have also provided empirically and theoretically rich accounts of how socio-economic and political developments at the local, state, and national levels can shape prison capacity expansion (e.g. Gilmore, 2007; Schept, 2012, 2013). However, like research that works to facilitate this facet of penal intensification, critical work on this topic often relies on information that is already available to the public to understand the justifications and means used to garner the support of politicians as they consider whether or not to expand prison spaces. As with other areas of inquiry on the topic of punishment, there is also a contextual gap in that most of the literature on penal infrastructure development is based on American case studies, necessitating research concerning jurisdictions that have not experienced similar incarceration rate increases and levels.

15Below, I locate and describe the analytical approach used to work towards minding these gaps in scholarship. Through an examination of published and unpublished proposals made by bureaucratic actors and appointed advisors to elected officials in Canada’s provinces and territories, I show how the construction of the new prison spaces examined in this study were mostly built to confine remanded prisoners.

1.3. A Materialist-Abolitionist Framework for Understanding Prison Capacity Expansion

16Under attack since its ascendancy within western capitalist democracies, the modern prison has been the object of an ongoing programme of reform where its purpose has been reimagined by its proponents to perpetuate its existence (Foucault, 1975). This exercise has often resulted in the further consolidation of the power to confine and punish (Ignatieff, 1978), expanding the reach of the prison not only within the penal system, but beyond through the introduction of community-based punishments such as house arrest and parole that, in many cases, have served as add-ons rather than as alternatives to incarceration (Cohen, 1985), although not always (see, for example, Webster, Doob, 2014). The banners under which the prison flag flies (e.g. deterrence, incapacitation, justice, reformation, rehabilitation, reintegration and so on) may vary over time, and disappear and reappear. However, as noted by Sim (2009) the hegemony of the prison – as an idea and material practice – is never complete.

17This being the case, the future of imprisonment as a stated response to a wide-range of social issues labelled ‘crime’, while probable, is not assured and is the object of contestation between proponents and opponents of incarceration. On the one hand, there are advocates and defenders of confinement who work to persuade others of its necessity. Their work involves the ideational reproduction of the prison as a dominant idea through the ongoing ascription of meaning and purpose to built structures that would otherwise have no perceived function or reason to exist. On the other hand, there are those who perceive the prison to be a fiasco in terms of its own purposes (Mathiesen, 1990, 137) and wish to halt its growth, reduce its use or eradicate its existence altogether. They too must convince others that a future with reduced or no imprisonment is necessary and indeed possible. Their work involves the interruption of attempts to reproduce the prison by stripping the ideational structure that legitimates its existence. This is the struggle in which those who adopt an abolitionist stance, a constant and deeply critical attitude towards prisons and penal systems as human (and inhumane) solutions (Mathiesen, 2008, 59), are engaged.

  • 5 This position is borrowed from Nils Christie who is a penal minimalist.

18As a normative position, penal abolitionism rejects the state appropriation of certain conflicts through criminalization (Christie, 1977)5. While policing, judicial, prison and other institutions that comprise the penal system are commonly characterized as being responsive to harm and violence, penal abolitionists view their activities as additional forms of pain (Hulsman, Bernat de Celis, 1982). Those adopting such an abolitionist outlook advocate for the inclusive resolution of these officially problematized situations (Hulsman, 1986), while also pushing for the broader structural transformation needed to make such encounters between stakeholders in conflict possible on a larger scale than is currently practiced (Morris, 2000).

19Abolitionism is more than a normative stance. It is also “a way of grasping and a way of acting with regard to all the discursive and non-discursive practices of the criminal justice system” (De Folter, 1986, 40, original emphasis). Within this amalgam of approaches to social research (see Ruggiero, 2010), the materialist strand of penal abolitionism aims to understand the character of imprisonment and the role it plays as a state institution, intimately connected with the reproduction of an unequal and unjust social order divided by the social lacerations of class, gender, ‘race’, age and sexuality (Sim, 2009, 8). Not to be understood as a unified, unitary, coherent ensemble or agency, the state is always specific sets of politicians and state officials located in specific parts of the state system. It is they who activate specific powers and state capacities inscribed in particular institutions and agencies (Jessop, 1990, 366-367). As such, the activities of the state and its corollaries are often contingent, contradictory and unpredictable (Sim, 2009, 8).

20The purpose of abolitionist analysis is to inform action directed at interrupting the continuation of the prison and its appendages (Ruggiero, 2010). This generation of knowledge is critical when engaged in this ideational struggle, providing the discursive and strategic tools needed to contest penal necessity locally and to fight the social inequality prisons engender. Similar to the praxis of Gramsci (1971), it is a materialist and idealist approach that necessitates involvement in the struggles one is seeking to understand with the goal of affecting social change.

21One materialist approach to abolitionist research developed by sociologist Thomas Mathiesen (1974, 1980, 1990, 2004) over a career dedicated to working towards the elimination of prisons in Norway involves the analysis of the finishing tendency of the state, a tendency where actors seek to both legitimize the prison and render ideas that challenge its existence – and those who espouse them – as illegitimate. The former involves the examination of the justifications marshalled in support of penal stasis and the expanded use of incarceration. These justifications are studied to develop an understanding of how the prison idea is being reproduced.

22In addition to the analysis of the supportive component of the ideological structure that renders the prison as an institution and a sanction meaningful and legitimate, there is a need to examine the negating component of penal belief systems (Mathiesen, 1990, 137). This aspect of Mathiesen’s research entails an analysis of the neutralization techniques mobilized by proponents of incarceration to defuse attempts to disrupt the status quo through critique, along with the introduction of fresh ideas and initiatives (ibid., 37). For him, these techniques vary from the more or less open dismissal of ideas which are in conflict with prevailing system interests to techniques which more subtly and unnoticeably deleted them from the agenda (ibid.). Put differently, these are techniques deployed by an absorbent state that defines in change-oriented ideas and individuals that pose a challenge to the status quo to meet its existing ends (Mathiesen, 1980, 287). The absorbent state also defines out those who do not seek to affect change through cooperation with hegemonic forces (ibid., 288).

23Taken together, the analysis of the supporting and negating components of the prison idea are mobilized by abolitionists to inform action aimed at interrupting the dominant place prisons occupy in a given society, the results of which also become objects of analysis in the reassessment of the terms of this debate. In taking this approach, abolitionism operates as a form of action research (Ruggiero, 2010), whereby knowledge is derived from practice, and practice [is] informed by knowledge, in an ongoing process (O’Brien, 2001, 6).

24This paper is part of a larger project that aims to develop an understanding of how the prison idea is being reproduced in the Canadian context through an analysis of the discourses legitimating and processes facilitating the establishment of new penal infrastructure. The construction of new spaces of incarceration is an integral component of the reproduction of the prison idea as decisions to build them are justified by the stated purposes assigned to these structures that give meaning to their continued existence, in spite of their ongoing failures to achieve them (Mathiesen, 1990). This contest of ideas can and does involve many state and non-state actors seeking to garner support for more prison spaces across different spheres, including in legislative chambers and various media (see Piché, forthcoming).

25The specific focus of this paper, however, is on the justifications advanced by civil servants and appointed advisors within their recommendations made to PT politicians on how to address the increase in remanded prisoners, which can be grouped into two categories. The first set of recommendations, best encapsulated in the 2009 Changing Face of Corrections Task Force Report (CFCTFR), urged elected officials to make reforms across the penal system to reduce the number of individuals awaiting bail decisions, trial and sentencing in detention (McCrank et al., 2009). The second set of recommendations, present in published and unpublished documents obtained during the course of this study (Piché, 2012a), advanced the construction of new prison spaces as a way of coping with the remand demand. Drawing on the analytical framework developed by Mathiesen (1974, 1980, 1990, 2004), I explain how the latter was the preferred course of action taken by governments in many of Canada’s provinces and territories. The findings presented below will show that while those working at the bureaucratic level have previously counteracted efforts to further entrench imprisonment in the Canadian context (Doob, Webster, 2006) and sometimes been instrumental in the reduction of prison populations (Webster, Doob, 2014), they can also seed the ground for future prison growth.

2. The Cases Made Against and For Prison Capacity Expansion

  • 6 Examining trends from 1960 to the early 2000s related to adult prison populations, Doob and Webster (...)

26In recent decades, reports produced by Government of Canada agencies have consistently noted that the Canadian rate of incarceration, which stood at 117 per 100,000 in 2008, is relatively high when contrasted to other comparable nation states (Public Safety Canada, 2012, 5). Despite this, the country is often lauded for having a moderate approach to penality both domestically (e.g. Meyer, O’Malley, 2005) and internationally (e.g. Pratt, 2007) when contrasted to neighbouring jurisdictions in the United States and to the situation in the United Kingdom, with whom it shares parliamentary, legal, as well as other traditions6.

  • 7 Conditional sentences, more commonly known as “house arrest”, allow eligible individuals to serve t (...)
  • 8 To this end, section 718.2 of the Criminal Code of Canada was modified to include the following pro (...)
  • 9 During the tenure of Progressive Conservative Premier Mike Harris (1995-2002), the Government of On (...)

27Doob and Webster (2006) document many factors, of which the presence of an official culture of restraint shared by political and bureaucratic actors vis-à-vis punishment is one, that explain how Canadian incarceration rates have remained relatively stable over the past half-century. Amendments made to the Criminal Code of Canada in the 1990s emerging from the deliberations of Federal-Provincial-Territorial (FPT) governments on how to address prison population increases principally driven by growth in the number of sentenced prisoners during this period– including the introduction of conditional sentences7 and measures to encourage the use of community-based sanctions8 – are cited as examples of this restrained culture of punishment in action (Doob, Webster, 2006). While the establishment of new penal infrastructure occurred in some jurisdictions such as Ontario at this juncture in history (see Hannah-Moffat, Moore, 2002; McElligott, 2007, 2008),9 the growth of the sentenced population in PT prisons stalled and some older facilities like the Cornwall Jail were closed (see Walby, Piché, 2011).

  • 10 As of 2010-2011, 53% of PT prisoners were on remand, a decline from 58% in 2009-2010 (Dauvergne, 20 (...)
  • 11 According to McCrank et al. (2009, 14), Canadian remand levels stand in sharp contrast to those obs (...)

28Whereas the number of sentenced prisoners was a chief concern shaping FPT penal policy discussions in the 1990s, the rise in the number and proportion of remanded prisoners began to receive increasing attention among this group in the first decade of the new millennium. From 1986-1987 to 1996-1997, between 23 and 30 percent of PT prisoners were on remand (Johnson, 2003). By 2000-2001, 40 percent of those incarcerated by the provinces and territories were awaiting trial and / or sentencing (ibid.), with these prisoners accounting for approximately half of this institutionalized population in 2004-2005 (Beattie, 2006). Since that time, those remanded in custody have outnumbered sentenced prisoners at the PT level (Porter, Calverley, 2011).10 In other words, today there are more people that have yet to be tried or sentenced than those serving a sentence in penal institutions operated and managed by the provinces and territories.11 While the increase in remand over the long-term has been uneven across Canada, this development did not go unnoticed by prison officials and politicians (Webster et al., 2009, 84), garnering the attention of the FPT Ministers of Justice and Public Safety who made the issue a standing item on the agenda for their annual meetings (British Columbia Corrections Branch, 2006a, 2) following the tabling of a 2005 report prepared by the Remand Working Group of the FPT Heads of Corrections.

29The growth in remanded prisoners generated two sets of recommendations from PT prison agency bureaucrats and advisors, which are the focus of the following section. A first set of recommendations involved appeals to politicians to address the sources of the remand demand, including risk aversion in policing and the judicial process that was seen as responsible for the growing flow of remanded prisoners. This can be gleaned through an analysis of the 2009 CFCTFR that proposed a series of changes to be made “upstream” of corrections (McCrank et al., 2009, 21). A second set of recommendations involved proposals to politicians to expand the number of prison spaces to accommodate the growing and ‘changing’ prison populations they were mandated to manage. These recommendations were outlined in a number of reports published on PT government websites, as well as previously unpublished reports, ministerial briefing notes and memorandums, and other documents obtained from these jurisdictions through access to information and freedom of information requests (see Piché, 2012a). While the overall thrust of these two series of proposals appears to be contradictory, a closer analysis of the CFCTFR reveals the presence of finishing discourses that undermine the advancement of proposals contained therein to reduce the flow of PT prisoners. Most significant among them is the claim that prisoners today are different than in previous times, with more complex needs, histories of violence and gang affiliations. Such an argument arguably works to neutralize the claim that [b]uilding remand centres is expensive and resourcing a bad trend [and] is paving a road we shouldn’t be on (McCrank et al., 2009, 18).

3. An Attempt to Address the Sources of the Remand Boom

30Established in November 2007 to study what was perceived to be a changing composition in PT prison populations (see Newfoundland and Labrador Department of Justice, 2007), the Changing Face of Corrections Task Force was mandated to collect information from prison agency databases, develop a survey to be completed by corrections officials to solicit subjective assessments of how they are managing issues created by population changes and attend meetings with the PT Heads of Corrections to gather their feedback (McCrank et al., 2009, 1). In this section, I outline the sources of the remand demand identified in the CFCTFR (McCrank et al., 2009) and related recommendations that were circulated to participants at an FPT meeting of the Ministers of Justice and Public Safety in October 2009 (see CICS, 2009). This analysis is also supplemented by the research of Webster et al. (2009) to show how this shift was precipitated by changes elsewhere, notably in the administration of the penal system, that were largely not addressed in many Canadian provinces and territories who largely turned to building additional prison spaces.

3.1 Risk Aversion Prior to Trial and Sentencing

31In seeking to explain increases in the number of individuals awaiting bail decisions, trial and/or sentencing behind bars, the CFCTFR explored whether rates of police-reported victimization were linked to this trend. While the obvious explanation is that crime must be up, the task force found that the number and the rate of adults charged (for all offences, all Criminal Code non-traffic offences, and violent offences), have not changed appreciably, and, expressed as a rate, are, if anything, in moderate decline in recent years (McCrank et al., 2009, 14). Thus, they concluded that an explanation regarding increases in the number of admissions to remand studied by the task force lay elsewhere.

32Turning their attention to the judges responsible for granting bail, the authors of the CFCTFR argued that people who decide whether an offender [sic: accused] is held in custody are well aware of sensational cases in which an alleged offender commits a notorious crime while on bail (ibid., 13). Webster et al. (2009) note that this perceived risk is felt across the penal system by various actors, including police officers who arrest the accused, the Crown attorneys responsible for the prosecution of cases, the judges or the justices of the peace responsible for the adjudication of court processes, and so on. In circumstances where the social benefits of releasing individuals who are presumed innocent (e.g. protecting their right to bail unless there is ‘just cause’, the cost savings associated with their non-incarceration, allowing the accused to maintain their ties in the community and the like) are mostly invisible and the professional costs (e.g. an accused party not appearing for a scheduled court appearance or is alleged to have committed another ‘crime’ while on bail) are visible and, on occasion, publicized in the news media, the more incentives there are for the aforementioned actors to be risk averse (ibid., 100-101).

33In practical terms, risk aversion appears to have had a number of consequences that have come to the fore in the last decade, including, but not limited to: 1) more charges being laid against an accused party that increases the complexity of cases; 2) an increase in the proportion of cases that enter courts via bail proceedings; 3) an increase in the number of appearances to resolve the bail question; 4) a greater number of conditions placed on individuals who are granted bail that increases their probability of revocation and subsequent custody in remand centres; 5) an increasing rate of individuals not being granted bail when they first come before the courts; and 6) fewer consent release agreements made between Crown and defense attorneys that are presented to judges for consideration (ibid., 97-101).

34The CFCTFR partly attributed the developments noted above to legislation restricting the discretion of judges concerning the use of bail that was supported and even requested for the most part by provincial and territorial governments and with broad support across federal political parties (McCrank et al., 2009, 16). They also argued that there has been a hardening of the individuals who increasingly come before the courts with records of violence and offences against the administration of justice, like failures to appear (ibid.), contributing to court decisions to keep more individuals in remand. Whether defendants have past records of criminalized violence or not, it should be noted that recent data compiled by Statistics Canada shows that 68 percent of those admitted to remand in Newfoundland and Labrador, Nova Scotia, New Brunswick, Ontario and Saskatchewan were charged with non-violent offences […] the most common of which were failure to comply [just above 10 percent] and breach of probation [10 percent] (Porter, Calverly, 2011, 13). Nonetheless, the CFCTFR made the case that although there were slightly fewer accused coming before the courts, they were, on the whole, different from and riskier than previous generations of individuals charged with a ‘criminal’ offence. Thus, while acknowledging the need for systemic reforms that would see fewer individuals being remanded into custody, the necessity of incarceration to house those perceived to be dangerous by penal system actors was maintained.

3.2. Delays in the Administration of the Penal Process

  • 12 It should be noted, however, that this trend is slowly changing, with the median elapsed time decre (...)

35Beyond increases in the number of remanded prisoners in a context of risk aversion, the CFCTFR discussed why the remanded were spending more time to conclude their court cases. The task force attributed this trend to increases in [c]ase processing times experienced in most, if not all, jurisdictions that are long and getting longer (ibid.). The claim is supported by data compiled by Statistics Canada stating: the median elapsed time for a case to reach completion in the 10 reporting jurisdictions [excluding Manitoba, Northwest Territories and Nunavut] was 101 days (Thomas, 2010, 12). By 2004-2005, this median processing time for the jurisdictions surveyed had increased to 128 days.12

36While such figures suggest, at first glance, that there exists a court backlog that is causing individuals to stay in remand longer, Webster et al. (2009, 97) note that there appears to be a culture of adjournments at work whereby requests to remand a case to a later date, including for bail determination, are seen as somehow inevitable or acceptable. As will be discussed further in the following section, the CFCTFR partly attributed this development to strategic choices made by some duty counsel and defense attorneys to delay proceedings to secure greater credit for time served at sentencing for their clients (McCrank et al., 2009, 16).

37With little control over what transpires in court and other aspects of the penal process that generate demand for prison beds, the authors of the CFCTFR recommended the following penal reforms be made “upstream” of corrections:

Ministers responsible for police, prosecution, and courts administration should:
i) review their bail release processes to ensure they are optimal;
ii) enhance their efforts to improve case processing times and reduce the number of court appearances (
ibid., 21).

38These proposals were prefaced with the argument that too many people are on remand for too long and that the roots of the problem lie in public policy and the administration of justice, so that is where the better solutions will be found. The task force warned that if nothing else is done prison authorities would have to address longstanding crowding issues by building more facilities and hiring more staff (ibid.).

3.3. The ‘Incentive’ of Remand

39Arguing that the remand boom is an issue to be dealt with by the penal system as a whole, requiring the full and integrated corporation of all components from policing, through the crown prosecutors, courts and corrections, in order to ensure an effective system (ibid., i), the CFCTFR made the case for a significant change to sentencing legislation. The authors of the report believed that the practice of awarding double and even triple credit for days served in remand creates an apparent incentive to a person, who expects to be convicted and sentenced to custody, to stay on remand (ibid., 16). Furthermore, they argued that this creates disparities between the sentences handed-down to individuals for similar acts committed under similar circumstances (ibid., 21). As such, the task force recommended the following:

  • 13 As an interim measure the CFCTFR recommended that the Criminal Code should be amended to provide th (...)

The Criminal Code should be amended to remove credit for time served from sentence calculation and instead the sentence be deemed to have begun on the day the person entered custody. When calculating [the] warrant expiry date and eligibility for conditional release, the sentence would be deemed to have begun on the day that the person entered custody, but any days not spent in custody between that date and the sentencing data would not count as part of the calculation of the warrant expiry date or conditional release eligibility (ibid.).13

40This recommendation closely resembled earlier calls by PT governments to remove credit for time served, which lent legitimacy to the tabling of the Truth in Sentencing Act (2009) by the federal Conservatives. While Webster et al. (2009, 96-97) note that defense lawyers had increased the number of requests for adjournment prior to the resolution of bail in Toronto, claims that duty counsel and defense attorneys were delaying the penal process to obtain a lesser sentence for their clients is not yet corroborated by other evidence that has been collected to date. In fact, the only study to look into this issue involved interviews with remanded prisoners noted that only 12.8 percent of respondents from Manitoba cited pre-sentence credit as being the source of trial delays (Weinrath, 2009). Similar studies involving interviews with duty counsel and defense attorneys have not been undertaken.

  • 14 See section 719(3.1) of the Criminal Code of Canada.

41Also missing from the dominant narrative regarding credit for time served was any discussion of the purposes of this sentencing provision that have been outlined by Manson (2004). First, given that prisoners in remand have little to no access to programming, this credit was in place to recognize that these incarcerated individuals were essentially serving what is known as “dead time”. Second, this credit was in place as a means to compensate remanded prisoners for essentially being warehoused in decrepit, dangerous and crowded facilities. Beyond the recognition of the harms of remand, such provisions were designed to encourage governments to improve prison conditions and bolster the resources of the judiciary to ensure the prompt resolution of cases before the courts. With the coming into force of the Truth in Sentencing Act (2009), these issues were largely swept under the rug, with judges now only able to give one and a half days of credit for every day served in remand at sentencing if the circumstances justify it.14 Passed in the name of efficiency and just deserts, it is unclear the degree to which this law will reduce the remand demand as advertised by its proponents and/or increase sentenced populations, both federally and at the PT level, as has been forecasted (see, for example, Rajekar, Mathilakath, 2010). On the remand side of the equation, in the period that data has been available following the implementation of the TISA (2009), the proportion of remanded prisoners held in PT facilities declined from 58 percent in 2009-2010 to 53 percent in 2010-2011 (Dauvergne, 2012, 8). Where sentencing is concerned, many judges are giving 1.5 day credit for every day remanded into custody as normal practice (see Withers, 2014). At this stage, more time is needed to see what the long-term impacts this legislation will have on the number and composition of prisoners going forward.

42In summation, prison agencies from the provinces and territories had collectively recognized that the increase in the number of inmates on remand is beyond the control of correctional services (McCrank et al., 2009, 4). They also advocated for an integrated response across penal system agencies and different levels of government to reduce the number of remanded individuals awaiting bail decisions, trial and / or sentencing. Among the stated reasons underpinning this call for change by the CFCTFR were the practical problems in administering prisons with an increasing number of remanded prisoners, including: 1) rising costs associated with transporting individuals to and from court; 2) crowding in facilities close to courts and the unused capacity of those further away; 3) security concerns with managing prisoners who are experiencing uncertainty about the future; 4) the price tag of building new facilities with each bed costing as much as $ 300,000; and 5) difficulties providing programming (ibid., 16-17). The task force also referred to the moral implications for the administration of justice and civil society of having more remanded than sentenced prisoners in PT prisons on a given day (ibid., 13). Here we see a number of considerations that inform penal policies and practices in Canada’s provinces and territories, including cost-efficiency, managerial and security concerns, the rehabilitative ideal, and the so-called pursuit of justice.

43Before these themes are explored further in the following section, it needs to be reiterated that accompanying the call for reducing the flow of PT prisoners were observations about a changing prisoner profile that was characterized as being more volatile than previous generations of the incarcerated, which reinforce notions of dangerousness that legitimate the deprivation of liberty. There were also recommendations made concerning the reduction of credit for time served in remand at sentencing that work towards this end as well. With these two discourses presented alongside proposals to reduce the number of remanded prisoners in the Canadian context where populist punitiveness is present, but with lesser effect than elsewhere (Doob, Webster, 2006), the odds of elected officials adopting the proposals made in the CFCTFR that work against prison capacity expansion were arguably diminished.

4. Attempts to Accommodate the Remand Boom

44In contradiction with the recommendation to diminish the flow of remanded prisoners outlined in the CFCTFR – who examined data provided by PT prison agencies and took into account the views of the Heads of Corrections from these jurisdictions – new penal infrastructure was being planned, designed, built or coming online. These prison capacity expansion efforts stemmed, at least in part, from recommendations outlined in documents produced by bureaucrats or commissioned by governments. The following section explores some of the shared and diverging justifications that were included in the cases made for additional prison spaces, with a focus on the problematization of the amount and composition of penal infrastructure available to absorb the influx of remanded and a so-called changing composition of prisoners.

4.1. Crowding and the Problem of Capacity Size

45Most PT prisons across Canada were either close to, or over, their designed capacity as the governments concerned considered their options to address the longstanding increases in the number of remanded prisoners in their respective jurisdictions. Below, I summarize the problem of crowding, some of the strategies that had been implemented to mitigate the flow of remanded prisoners, and the consequences outlined in internal and external prison system reviews, as well as other government documents, that informed and / or legitimated decisions concerning the development of new penal infrastructure.

  • 15 A decrease in the use of parole and an increase in parole revocations were also cited by Landrevill (...)

46Crowding was an important theme discussed in documents obtained as part of this study. In Nova Scotia, an external review by consulting firm Deloitte (2008, 97) published in October 2008 noted that while the province’s prisons had an average capacity utilization rate of 89 percent since 2006, in 2007 its facilities were overcapacity about 205 days, or 54% of the time. Similarly, an internal review by the New Brunswick Community and Correctional Services Branch (2008, 18) concluded in March 2008 noted that its prisons were operating at about 40% over capacity, averaging close to 400 inmates daily in an adult system originally designed for 284 people. This prison population increase was largely driven by more than a tripling of the remand population from an average of 45 prisoners in 2000 to 145 in 2008 (ibid., 19-20). Another internal review finalized in November 2008 by the Prince Edward Island Office of the Attorney General (2008a, 3) noted that [o]vercrowding is an ongoing challenge, with the 94-bed Provincial Correctional Centre imprisoning between 120 and 145 offenders who were occasionally triple-bunked. In the unit for incarcerated women the cells designed for four females warehoused up to 18 incarcerated women (ibid.). In an earlier study by Landreville and Charest (2004) commissioned by the Québec government that informed their decision to build the new prison spaces that are gradually coming online today, capacity utilization was around 100 percent, with the authors observing a consistent increase in remanded prisoners from 1984 to 2002.15

47The problem of capacity overutilization was also documented in parts of western Canada. In Saskatchewan, the provincial government’s response to an external investigation into an escape at the Regina Provincial Correctional Centre (RPCC) (see Peet et al., 2008) noted that its prison system had 833 cells to accommodate a population that had grown from 1,203 prisoners in 1998-1999 to 1,498 prisoners (Saskatchewan Ministry of Corrections, Public Safety and Policing, 2009, 5). During this period, the number of remanded prisoners in the province had more than doubled from 245 to 575, which was said to require construction beyond the new remand centre built at the RPCC, which opened in 2008. An even more egregious example of crowding was documented in a business case submitted by Alberta Infrastructure and Transportation (no date) to the provincial government for funding to build a new remand centre in Edmonton where the existing facility that was built to accommodate 332 prisoners warehoused an average of 880 individuals in 2005-2006. A successive series of ministerial briefing notes written by prison officials in British Columbia documented dramatic increases in the number of prisoners in the province, with an average daily prison count of 2,189 from April 2004 through January 2005 (British Columbia Corrections Branch, 2006b, 1) that had risen to record levels, averaging 2,809 with peaks exceeding 2,900 during fiscal year 2008-2009 (British Columbia Corrections Branch, 2009, 1). As a result, at any time about 90% of inmates are double-celled, with two remand centres in the Metro Vancouver area operating between 190% and 210% of their capacities at the time (ibid.).

Table 1: Average Capacity Utilization since 2006

NS

BC

AB

SA

ON

NB

NL

YK

NT

NU

Total

89%

128%

81%

108%

94%

108%

100%

54%

81%

154%

96%

Source: Deloitte (2008, 98).

48While information concerning average capacity utilization was not disclosed in the documents I obtained from the governments of Newfoundland and Labrador, Ontario, Manitoba, Nunavut and the Yukon, it should be noted that the external review of Nova Scotia’s prison system published in October 2008 did involve attempts to collect this data from these jurisdictions (see table 1). While Manitoba did not disclose data, Newfoundland and Labrador, Ontario, Nunavut and the Yukon reported their average capacity utilization rates since 2006 (Deloitte, 2008, 98).

  • 16 Personal communication with a former senior prison official in Ontario on 8 November 2010.

49The figures above are, in some cases, misleading. For instance, capacity is often redefined from one prisoner to a cell designed to accommodate one person to two prisoners or more. According to Deloitte, double-bunking – incarcerating two prisoners in a cell originally built for one person – is a common practice used to address crowding in all Canadian provinces and territories (ibid.). In light of this normalization of double-bunking, Deloitte recommended that Nova Scotia simply redefine the term capacity (ibid., 95) and by adopting double bunking, it will further reduce capacity pressure (ibid., 98). Such manipulation of language is apparent in Ontario where government officials reported to Deloitte that the number of prisoners was below its rated capacity, yet its prisoners were triple-bunked in 11 out of 31 of its prisons in operation at that time.16

  • 17 The Kingsclear Investigation Report, referred to as the Miller Inquiry Report, was an investigation (...)

50A number of other mitigation strategies were used by PT prison agencies to manage prison population growth. In Prince Edward Island, [v]isitation, library and group program spaces were converted into dorms (Prince Edward Island Office of the Attorney General, 2008a, 3). In neighbouring New Brunswick, spaces designated for imprisoned youth were used to incarcerate adult prisoners in contravention of United Nations convention, the Miller Inquiry report and good correctional practice (New Brunswick Community and Correctional Services Branch, 2008, 19).17

51The transfer of prisoners from severely crowded to less crowded facilities within a jurisdiction was another option cited, although as prison spaces became increasingly scarce it was seen as less viable in some jurisdictions. For example, transferring prisoners from the crowded Edmonton Remand Centre to other, less secure facilities that are also at, or near, maximum capacity was deemed to no longer be a suitable accommodation measure by the office of the Alberta Solicitor General and Public Security (2006a, 4). Historically, exchanges of service agreements (ESAs) involving the transfer of prisoners to facilities in neighbouring jurisdictions or federal penitentiaries run by CSC have also been used to temporarily relieve PT prison capacity pressures in the Canadian context. However, as noted by the New Brunswick Community and Correctional Services Branch (2008, 20), ESAs have become worn and strained in a context where prison capacity pressures have become widespread.

  • 18 The potential for institutional security incidents resulting from increased pressure on both inmate (...)

52A number of documents produced and commissioned by PT governments also echoed some of the consequences that the crowding of their facilities was having on prison system administrators and staff that were documented in the CFCTFR by McCrank and colleagues (2009). When a prison was over the capacity it was designed for, officials from many jurisdictions, including New Brunswick, Alberta and British Columbia, argued that the safety of both prisoners and staff was increasingly at risk.18 As noted in an internal review of Prince Edward Island’s prison system, should crowding persist and new space not be created there is heightened risk of serious problems such as rioting, inmate violence, suicide, disease outbreak, escapes and/or staff labo[u]r issues (Prince Edward Island Office of the Attorney General, 2008a, 8). For these provincial officials, such events needed to be avoided as [o]ngoing correctional-related crises in Nova Scotia and Newfoundland have shown that any crisis associated with correctional services can have a significant impact on confidence in the overall Justice system and government (ibid.). In their view, establishing new penal infrastructure was viewed as necessary to meet the legal obligations of the provincial prison system that if breached could result in [p]ublic and independent inquiries whose recommendations become regional standards (Prince Edward Island Office of the Attorney General, 2008b, slide 4). Based on this identified need and anticipated growth resulting from current Canadian criminal code amendments and an expanded Exchange of Service Agreement with Correctional Services Canada (Prince Edward Island Office of the Attorney General, 2008a, 4), provincial officials estimated that a capacity of 190 beds would be needed to safely manage client demand and meet legislative mandates (ibid., 3). If this measure was not taken, it was argued that the system will also face the politically sensitive problem of being forced to implement early release to relieve some pressure (ibid., 8).

53Beyond these issues, some officials were concerned about complaints from prisoners and their advocates. For instance, in a business case submitted by the Alberta Infrastructure and Transportation (no date, 29-30) to the Alberta Treasury Board it was noted that crowding and related prison conditions have led to Charter challenges (at a considerable cost to defend). Thus, in order to comply with existing legislation and constitutional responsibility for care, custody and control of inmates; and adequately provide space for inmates and support services both now and into the future (ibid.), a new and larger remand centre was deemed to be required. In this instance, humanitarian and legal concerns were cited to further entrench the deprivation of liberty.

54With additional space and resources being diverted towards the management of crowded facilities, concerns were also raised about the ability to provide programming – which in the context of PT imprisonment is already scarce at best (Weinrath, 2009) – to both remanded and sentenced prisoners. Among those concerned about this issue were prisoners housed in crowded facilities in Newfoundland and Labrador, who felt that the lack of programs was compounded to a greater or lesser extent in all institutions by the physical and environmental conditions, the lack of recreation, the delays in getting things done, and uncertainties regarding cancellations and lock-downs (Poirier et al., 2008, 137). It is partly with this in mind that an external review of the province’s prison system (Poirier et al., 2008) supported plans to build new penal infrastructure. Similar concerns were raised in an internal review of New Brunswick’s prison system, which noted that the needs of various stakeholders falls to a low priority for correctional managers who spend much of their time managing mainly operational issues on a day to day basis associated with crowding (New Brunswick Community and Correctional Services Branch, 2008, 20-21).

55In reviewing the documents obtained as part of this study, it is evident that a number of custodial options were deemed exhausted, unsustainable or politically unviable. Without the political will to address the sources of the remand demand, whose cultivation was arguably undermined by claims concerning the changing prisoner profile briefly addressed in the previous section and explained in more detail below, new prison spaces were deemed to be necessary by prison agency officials and external advisors.

4.2. The “Changing Offender Profile” and the Problem of Capacity Composition

  • 19 The changing offender profile, which is said to include dangerous prisoners such as gang members, i (...)

56PT penal infrastructure projects were not simply envisaged as solutions for prison capacity shortages, but also as means through which to build different kinds of spaces said to be more efficient, as well as better equipped to provide institutional security and programming for a changing offender profile. The starting point for this argument is that in previous years prison populations were homogeneous and facilities did not need to be built to spatially segregate prisoners other than for reasons of security classification.19 It is then claimed that prisoners today are much more diverse in terms of the risk they pose to the safety of other prisoners and staff, as well as the needs they are said to have that require ‘correctional’ intervention. For those who subscribe to the idea, there is a need to build ‘modern’ penal institutions that can facilitate the spatial segregation and delivery of programming to prisoners who are often grouped into four sub-populations distinguished from the general population.

57A first population whose considerable representation in prisons across Canada has led to calls for the creation of new carceral spaces is Aboriginal peoples. While Aboriginal peoples represented 3 percent of the general population in 2008-2009, they represented 21 percent of those admitted to remand and 27 percent of those serving sentences of two years minus a day in PT prisons (Calverley, 2010, 11). This issue was raised in a number of reports recommending the establishment of new penal infrastructure in Newfoundland and Labrador (Poirier et al., 2008), New Brunswick (New Brunswick Community and Correctional Services Branch, 2008), Manitoba (Bruce et al., 2005), Nunavut (McCready Consulting, 2002) and the Yukon (Yukon Correctional Action Plan Implementation Office, 2006). As with the establishment of healing lodges by CSC in recent decades (see Faith, 1995; Martel et al., 2011), recommendations to build more culturally appropriate milieux for incarceration frequently coincide with similar proposals for programming, as well as the hiring and retention of Aboriginal staff to work with these prisoners.

58Kilroy and Pate (2011) note that women are the fastest growing prison population worldwide. Canadian jurisdictions have not been exempt from this broader trend as noted in a study by Statistics Canada (Babooram, 2008, pp. 36-37) that showed an increase in both the number and proportion of incarcerated women in PT prisons from 2001-2002 (remand= 11,494 or 10 percent / sentenced= 5,961 or 9 percent) to 2006-2007 (remand= 15,640 or 12 percent / sentenced= 6,523 or 11 percent). This trajectory has also been noted in reports examining prison systems in Prince Edward Island (Prince Edward Island Office of the Attorney General, 2008a), New Brunswick (New Brunswick Community and Correctional Services Branch, 2008), Manitoba (Bruce et al., 2005) and Nunavut (McCready Consulting, 2002). An increase in the number of incarcerated women has been a central justification for the construction of new PT prisons or units in these jurisdictions, with the exception of New Brunswick that has yet to implement a recommendation to build a new facility similar to the federal penitentiary for women in Truro, Nova Scotia. The premise underlying these proposals is that most penal institutions are not built with incarcerated women in mind, and thus, new facility construction, along with the hiring of female staff and the development of gender-specific programming, is required to meet their needs. These rationales for the establishment of new prison spaces are similar to those articulated as CSC built new regional prisons for women across Canada in the past two decades (see Hannah-Moffat, Shaw, 2000; Hannah-Moffat, 2001; Hayman, 2006).

59Citing an increase in the number of incarcerated individuals with identified mental health and / or substance addiction issues has also featured prominently in discussions regarding the need to build new penal infrastructure to manage the changing offender profile in certain jurisdictions. It should be noted, however, that as recently as October 2010 Statistics Canada has had difficulty capturing the scope of this issue at the PT level. This is due to the fact that jurisdictions – with the exception of Saskatchewan who reported that 92 percent of prisoners held in their penal institutions required treatment for substance abuse (Calverly, 2010, 13) – did not yet have the ability to record needs information in their administrative systems, and / or the ability to transfer the information to the Canadian Centre for Justice Statistics (ibid., 32; also see Sinha, 2009). As with other identified sub-populations, deficits in the availability of specialized services and staff to address the needs of these prisoners have been raised in reports and internal documents related to the prison systems of Newfoundland and Labrador (Poirier et al., 2008), Prince Edward Island (Prince Edward Island Office of the Attorney General, 2008a, 2008b), New Brunswick (New Brunswick Community and Correctional Services Branch, 2008), British Columbia (British Columbia Corrections Branch, 2006a, 2007) and the Yukon (Yukon Correctional Action Plan Implementation Office, 2006).

60A growing number of identified gang members within prisons has been cited in reports and other documents focussing on provincial prisons in Saskatchewan (Peet et al., 2008; Saskatchewan Ministry of Corrections, Public Safety and Policing, 2009), Alberta (Alberta Solicitor General and Public Security, 2006b) and British Columbia (British Columbia Corrections Branch, 2006a). The concerns associated with gangs in the context of crowded prisons are best captured in the following excerpt of a business case submitted by the office of the Alberta Solicitor General and Public Security (2006a) to the province’s Treasury Board for the establishment of a new remand centre in Edmonton:

…[the] ability to keep co-accused offenders, incompatibles, and gang members apart, as well as accommodating large scale arrests, is compromised by limited space availability. Overcrowding also increases the frequency of threats and attacks on correctional staff and inmates.

  • 20 Section 467.1(1) of the Criminal Code of Canada defines a gang as a group, however organized, that (...)

61Prison officials and external advisors cited these challenges as requiring prison capacity expansion to better manage identified gang members. Left unconsidered is the low threshold of what constitutes a gang or criminal organization20 and how imprisonment itself may pressure some prisoners to join gangs for their protection while incarcerated.

62Taken as a whole, the changing offender profile regroups marginalized populations, legitimating the use of incarceration as a governance strategy to manage Aboriginal survivors of Canada’s colonization project (Faith, 1995; LaPrairie et al., 1996; Martel et al., 2011), women who turn to sex work, the drug trade and other criminalized means of subsistence to survive (see Comack, 1996; Balfour, Comack, 2006; Acoose, 2011), individuals identified as having mental health and drug addiction issues (OCI, 2010), as well as youth who are said to be involved in gangs (Schissel, 2006). Coupled with statistics showing that a significant portion of those imprisoned have not completed high school and are unemployed (see Babooram, 2008; 33; Calverley, 2010, 25), the prison in Canada, like elsewhere in the world, is increasingly being envisaged and used as a panacea to (not) deal with a wide array of complex social issues (Davis, 2003).

63Deemed outmoded to meet modern standards of confinement, the pursuit of rehabilitation, the provision of institutional and public safety, as well as demands for operational efficiency in both prisons and the penal system more generally, jurisdictions continue to pursue the replacement of prisons deemed to be obsolete with a renewed, yet arguably also obsolete (Davis, 2003), prison idea. As this section illustrates, the objectives of imprisonment – and in this case prison capacity expansion – are multiple and contradictory (O’Malley, 1999).

5. Discussion

64In the previous section, two series of proposals that coalesced around the question of how Canadian provinces and territories could cope with their growing population of remanded prisoners were outlined. The first was largely oriented towards finding ways to reduce the flow of individuals awaiting bail decisions, trial and sentencing in custody. The second emphasized the need to build new prison spaces for remanded prisoners. Ultimately, politicians from most of the jurisdictions concerned placed the bulk of their resources pursuing the second option presented to them by officials from prison agencies and other advisors. Below, I will discuss a few of the key implications to be drawn from this experience as it relates to how those interested in questions of punishment come to understand the process and significance of prison capacity expansion in contexts such as Canada that have stable rates of incarceration when compared to those observed elsewhere in the world.

5.1. The Contradictory and Finishing Tendencies of the State

65When examining the findings presented above concerning the construction of new PT prison spaces underway across Canada, one could draw the conclusion that those advising elected officials on how to address the remand demand were trapped between a rock and a hard place, advancing prison capacity expansion proposals when there appeared to be little political will to address the sources of this crisis. While the data collected and examined as part of this study does not pinpoint what ultimately triggered the approval of these projects by legislators, it does show that prison agency bureaucrats and other advisors to government undermined proposals recommending alternatives other than prison building.

66As discussed previously, documents produced by, or involving the input of, PT prison agency officials placed a significant emphasis on the emergence of a changing offender profile. The stated newfound presence of a heterogeneous prison population in the facilities they were responsible for operating was deemed to pose a risk to institutional security and the ability of individuals to emerge from remand in a better state than they had entered. While documents presented to cabinet members in many provinces and territories warned of the pitfalls of using prison capacity expansion as a strategy to cope with the surge in remanded prisoners, these claims often appeared alongside observations concerning the alleged presence of more volatile prisoners with complex needs. Whether intentional or not, the depiction of prisoners in these documents arguably played the role of the negating component (Mathiesen, 1990, 137) within a finishing state that neutralized the alternatives to prison capacity expansion being presented.

67In a context of risk aversion (see Webster et al., 2009), many prison agency officials and others advising politicians advanced the claim that the myriad of problems attributed to the remand crisis (e.g. facility crowding, institutional security problems that on occasion spill out into the community in the form of escapes, lack of programming for prisoners) could be addressed through the establishment of additional spaces of confinement. These statements represent examples of the supportive component (Mathiesen, 1990, 137) within a finishing state emphasizing humane conditions of confinement, the provision of rehabilitation programming, safety inside and outside prison walls, and managerial efficiency that lend credence to incarceration.

68Both sets of finishing discourses, which are integral to Canada’s culture of punishment and the meanings Canadians attribute to this practice (Doob, Webster, 2006), worked together to resolve the contradiction created by the competing proposals outlined above in the direction of reinforcing, rather than diminishing, state repression. In the process, matters of convenience (e.g. political expediency and increased resources for prison agencies) appear to have been elevated over matters of conscience (e.g. reducing the number of prisoners said to be presumed innocent in custody) as has often been the case since the emergence of the modern prison (Rothman, 1980). And how could it have been otherwise given the arguments being advanced? Did those advising elected officials really expect that governments would choose to pursue approaches to reduce the remand population – beyond removing credit for time served – when those who comprise it are said to have numerous needs, including being more prone to violence, that could be met inside prison walls?

69Absent in the deliberations leading up to the decisions to build new prison spaces, at least according to the documents and other information obtained as part of this study, was any mention of the need for such projects on the grounds that they would generate economic development in host communities, a phenomenon which has been observed elsewhere (see, for example, Gilmore, 2007). In the Canadian context, it appears that the legitimation of prison capacity expansion on these grounds begins once penal infrastructure initiatives have been approved to generate community support. For example, an email exchange preceding the announcement of the new Dalhousie Regional Correctional Centre by the Government of New Brunswick shows that the job numbers disseminated to the public emerged as a result from pressure to provide them regardless of not having done a study to substantiate the figures (Piché, 2012b). If economic growth had been central to the approval of this project, one would expect the latter to have occurred. With this said, the promise of financial salvation did, in this case and others across Canada, operate as a finishing discourse to help generate support to expand the state’s ability to incarcerate and more research is needed to investigate what role capital interests play in penal policy decisions in this context.

5.2. Remand and Prison Capacity Expansion

70Irvin (1985, xi) remarked long ago that [s]ocial scientists, like the general public, have shown a great interest in the prison but have almost completely ignored the jail. Writing in the American context, he urges scholars to study jails on several grounds, including the fact that more individuals are processed in-and-out of these facilities than those housing the convicted and that the conditions those remanded into custody face are more cruel than those experienced by sentenced prisoners.

71Despite this clarion call, punishment scholars have continued to largely ignore the policies and practices, as well as the material conditions jails produce (Doyle, Walby, unpublished). While a few criminological studies have been undertaken on these facilities, related prison capacity expansion has not been the main focus of the administrative and critical research outlined in the first section of this paper. In fact, as noted in the introduction, many studies in the literature on punishment see penal infrastructure development as a consequence of prison population increases that arise following the passage of draconian sentencing laws (e.g. Page, 2011).

72The significance of this gap in the literature as it relates to this study is that had I only focussed on new spaces of confinement being built for sentenced prisoners, the picture of prison capacity expansion would be considerably smaller in scope. As it concerns building spaces to accommodate sentenced prisoners, it should be noted that only officials from Prince Edward Island, Newfoundland and Labrador, and Ontario had stated that they attempted to account for federal sentencing measures in their penal infrastructure plans (Piché, 2012a).

73This finding was surprising given that, under the leadership of the Conservatives who entered federal office in 2006, the Government of Canada has been pursuing a punishment agenda involving the introduction of numerous sentencing measures in a stated effort to imprison a greater proportion of criminalized people over lengthier terms of incarceration with tighter release controls (see Piché, 2013). In anticipation of the expected influx of new prisoners resulting from the Conservative-led pain campaign, CSC is in the process of adding 2,594 double bunks and 2,752 new cells (Auditor General of Canada, 2014, 2), while only decommissioning approximately 1,000 other spaces. By comparison, many PT governments have not, as of yet, announced how they plan to cope with the sentencing reforms of their federal counterparts that impact the operations of their prisons. As such, it is possible that more prison capacity expansion or the re-emergence of crowding in PT prisons may come sooner than later if a change in trajectory does not occur.

5.3. Prison Capacity Expansion and the Problem of Prison Population Stability

74In punishment scholarship, Canada is occasionally held up as a model of moderate penal policies in contrast to other jurisdictions where penal intensification has been documented (e.g. Meyer, O’Malley, 2005; Doob, Webster, 2006; Pratt, 2007). Prison capacity expansion efforts that are pursued for reasons including the need to ameliorate the treatment of prisoners and providing them with programs could perhaps be interpreted as additional evidence of such moderation, particularly at a time when the latest available data indicates that the Canadian prison population rate remains stable (Dauvergne, 2012). This position, however, is flawed on two grounds.

75Firstly, there is the matter of implementation. While PT prison authorities claim that the new shiny prison spaces they administer are more humane, there are examples where some of the poor conditions of confinement that legitimated their construction are reproducing themselves. For instance, the New Edmonton Remand Centre – the largest facility of its kind in Canada with a capacity of 1,952 – was designed to double-bunk most of its prisoners (Alberta Government, 2013). The new remand centre was – as of June 2013 – also warehousing more than 1,400 prisoners (Dykstra, 2013), when the facility it replaced held fewer than a thousand prisoners when it closed. Going forward, such local prison population trends may translate into more significant national incarceration rate increases.

76Secondly, even should prison population rates remain stable as new prison spaces come online, new penal infrastructure can still be problematized on other grounds. Carrier (2010, 16) argues that punitive turn theorists who lament penal intensification and what it purportedly entails (e.g. the decline of the rehabilitative project), are united by a pervasive critical pretension with rhetoric… [that] implies an acceptable (but never clarified) level of pain inflicted by the State. Carrier believes that these academic discourses are potentially counterproductive in that they legitimate the existence and affirm the necessity of imprisonment. In fact, recent discussions promoting penal parsimony (Bosworth, 2010) or penal moderation (Loader, 2010; Simon, 2010) to confront penal excess reproduce this very pitfall by denouncing the quantity of punishment (i.e. advancing arguments that certain societies punish too much) and the quality of punishment (i.e. advancing arguments that prisons should be places of treatment), rather than the existence and use of imprisonment itself.

77Moore and Hannah-Moffat (2005, 86) also problematize the fact that the majority of analysts and practitioners fail to acknowledge that [t]herapeutic discourses and practices that operate in the name of rehabilitation are also punitive. Prisoners, after all, are not… free subjects and [t]hey are not at liberty to make personal choices and are made to participate in programming designed to change them as part of their punishment (ibid., my emphasis). As such, it makes little sense to construct one brand of incarceration as rehabilitative and another as punitive as all sanctions that stem from criminalization, imprisonment included, are punitive (Matthews, 2005).

78It is in this light, that I view prison construction legitimated in part on humanitarian and rehabilitative grounds as problematic. These initiatives and the discourses that legitimate them perpetuate, in concrete ways, a penal status quo that inflicts pain and fails to meet the complex needs of those affected by criminalized conflicts and harms (Hulsman, Bernat de Celis, 1982), necessitating alternative ways of conceptualizing and responding to these problematized situations (Hulsman, 1986). It is on this final point that I wish to conclude.

Conclusion

79Through an analysis of published and unpublished documents outlining proposals tabled to politicians by bureaucratic and external advisors for dealing with PT prison crowding and a changing offender profile, this study showed how discourses often characterized in scholarship as regressive (e.g. the pursuit of institutional security and managerial efficiency) and progressive (e.g. the humane treatment of prisoners and rehabilitation) worked together to legitimate the construction of new prison spaces and the use of incarceration in Canada. This finding is in keeping with other studies that have shown how the liberal veil informs the infliction (Moore, Hannah-Moffat, 2005, 86; also see Schept, 2012, 2013) and cultural representations of penality (Walby, Piché, 2011) in this context.

80If strategies are to be developed to work towards interrupting the reproduction of the prison idea in such a way that they contribute to a reduction in the use of imprisonment in Canada and elsewhere where similar discursive climates exist, it appears necessary to move beyond tactics that address the powerful with ‘pleas to be nice’ (Ruggiero, 2010, 208). Perhaps, where academic work is concerned, it is time for a resurgence in penal abolitionist argumentation in the public sphere that operates as a sensitizing theory – one that challenges others to think and act beyond the confines of criminalization and punishment to address the human needs that arise from the conflicts and harms currently appropriated by the state and its penal system (Scheerer, 1986).

81Although such a proposal is likely to be dismissed as utopian and futile, even by those who reject projects of penality, the following observation from Weber (1919, 255), cited by Mathiesen (2008, 62), does put things in perspective:

Politics is a matter of boring down strongly and slowly through hard boards with passion and judgment together. It is perfectly true, and confirmed by all historical experience, that the possible cannot be achieved without continually reaching out towards that which is impossible in this world.

82Reaching for impossible possibilities is arguably more productive than reaching for possible possibilities that ultimately reinforce a status quo where state-sanctioned and inflicted violence is deemed to be an acceptable way to respond to the pain some, but not all, criminalized acts entail for affected parties. Mathiesen (2008) reminds us that, in an unfinished world where struggle is permanent, the possible is only limited by our imagination and willingness to fight for our ideals. Whether or not to engage in struggle is a choice, the latter of which may condemn us to repeating the well-documented history of penal reform that should have been put behind us long ago.

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Notes

1 For details concerning on-going federal penal infrastructure development see infra.

2 The federal government is responsible for the imprisonment of individuals sentenced to terms of imprisonment of two-years-plus-a-day. In 2008-2009, there were an average of 13,343 prisoners held in federal penitentiaries (Calverley, 2010, 19). This figure is cited as it pertains to the period where many of the decisions concerning the facilities examined in this study were made.

3 While the term punitive turn is commonly used to describe recent expansionary trends in penality that represent a radical departure in the quantity and quality of incarceration (Carrier, 2010), I use Sim’s (2009) term penal intensification as it acknowledges that current patterns of imprisonment are a continuation and acceleration of long established patterns in punishment.

4 During a panel held at the 2012 Annual Meeting of the American Society of Criminology titled Issues Related to Prison Construction, featuring presentations by the author, Schept and Groot, the final presenter noted during the question period that one of the motivations guiding her work to combat NIMBY sentiments is that prison construction is beneficial for the State of Colorado who, through the incarceration of individuals from other jurisdictions, generates funds used for public expenditures such as the operations of the university where she works.

5 This position is borrowed from Nils Christie who is a penal minimalist.

6 Examining trends from 1960 to the early 2000s related to adult prison populations, Doob and Webster (2006) note that while the rate of imprisonment in the United States increased by more than five times from 1970 to 2003 to 714 per 100,000 residents and the incarceration rate in England more than doubled from 1960 to 2002 to 139 per 100,000 residents, Canada’s level of imprisonment was no lower than 83 per 100,000 residents in 1974 and no higher than 116 per capita in 1995.

7 Conditional sentences, more commonly known as “house arrest”, allow eligible individuals to serve their sentences of two-years-minus-a-day under supervision in the community with conditions that if breached can result in them having to serve the remainder of their time before warrant expiry in a PT prison.

8 To this end, section 718.2 of the Criminal Code of Canada was modified to include the following provision for judges to consider at sentencing: “(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.

9 During the tenure of Progressive Conservative Premier Mike Harris (1995-2002), the Government of Ontario built two 1,200-bed ‘superjails’ in Penetanguishene and Lindsay, which replaced smaller jails in their respective regions, while also expanding the prison capacity of the province. Both facilities were created as a pilot project to compare operational costs and outcomes of two similar facilities. The Central East Correctional Centre in Lindsay was publicly run, while Management and Training Corporation, an American private prison firm, operated the Central North Correctional Centre in Penetanguishene from 2001 to 2006. Following an evaluation of the pilot project outcomes, a Liberal Government of Ontario decided that the facility in Penetanguishene would be run by the province following the conclusion of the private contract (CBC News, 2006).

10 As of 2010-2011, 53% of PT prisoners were on remand, a decline from 58% in 2009-2010 (Dauvergne, 2012, 9).

11 According to McCrank et al. (2009, 14), Canadian remand levels stand in sharp contrast to those observed elsewhere in the world that have recently hovered around 20 percent in jurisdictions like England and Wales, Scotland, Australia, New Zealand and the United States.

12 It should be noted, however, that this trend is slowly changing, with the median elapsed time decreasing to 124 days by 2008-2009 (ibid.) and to 117 days by 2011-2012 (Boyce, 2013, 17).

13 As an interim measure the CFCTFR recommended that the Criminal Code should be amended to provide that credit for time served be set at a fixed ratio of 1.5 days for every day served while awaiting trial. The sentence appropriate for the case should be pronounced in court as well as the number of days the offender spent in pretrial detention. The calculation of the legal sentence would be determined by these two facts (McCrank et al., 2009, 21).

14 See section 719(3.1) of the Criminal Code of Canada.

15 A decrease in the use of parole and an increase in parole revocations were also cited by Landreville and Charest (2004) as important drivers of prison population growth in Québec.

16 Personal communication with a former senior prison official in Ontario on 8 November 2010.

17 The Kingsclear Investigation Report, referred to as the Miller Inquiry Report, was an investigation conducted in 1992 that examined sexual abuse and misconduct at the New Brunswick Training School for youth in conflict with the law in the 1960s, 1970s and 1980s. For more information on the inquiry consult this page.

18 The potential for institutional security incidents resulting from increased pressure on both inmates and correctional staff associated with crowding was raised as a concern by the New Brunswick Community and Correctional Services Branch (2008, 28), while such occurrences were said to already be an operational reality in Alberta’s penal institutions in the business case for the new Edmonton Remand Centre (Alberta Infrastructure and Transportation, no date, 29). Similar concerns were raised in British Columbia, where measures that can be used to indicate the success of the province’s penal infrastructure plan included reductions in the number of inmate attacks on staff and inmates per year and major inmate disturbances (British Columbia Corrections Branch, 2007, 3).

19 The changing offender profile, which is said to include dangerous prisoners such as gang members, is arguably a contemporary manifestation of the incorrigible label applied to repeat prisoners in the past to justify their spatial separation from other incarcerated populations (see, for example, Archambault, 1938).

20 Section 467.1(1) of the Criminal Code of Canada defines a gang as a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including financial benefit, by the group or any of the persons who constitute the group.

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Justin Piché, « A Contradictory and Finishing State », Champ pénal/Penal field [En ligne], Vol. XI | 2014, mis en ligne le 27 juin 2014, consulté le 26 juin 2017. URL : http://champpenal.revues.org/8797 ; DOI : 10.4000/champpenal.8797

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Justin Piché

Assistant Professor in the Department of Criminology at the University of Ottawa and Co-managing Editor of the Journal of Prisoners on Prisons. Contact: justin.piche@uottawa.ca

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