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Ashley Smith case: Time to end ‘the ugly spirit of our penal system’

Ashley Smith was arrested when she was 14 for throwing crab apples at a mail carrier. In the five years Ms. Smith spent in the penal system as a result of the one incident (which dominoed into a series of 'institutional charges') she was bounced from institution to institution, suffered a range of abuses and potentially illegal treatments, including forcible injection with medication against her will, long periods of solitary confinement, being duct-taped, hooded, tasered and pepper-sprayed. Howard Sapers, the national correctional Investigator, concluded in his own inquiry into Ms. Smith's case that she was routinely denied adequate mental-health care.

Ms. Smith died on Oct. 19, 2007, after choking to death in her prison cell. Amplifying this tragedy, several guards stationed outside the door of her cell were under orders not to intervene.

Attempts to investigate Ms. Smith's death speak volumes about the ugly spirit of our penal system. Instead of an honest admission that there are deep and longstanding problems with the structures of punishment and an accompanying resolve to actually address these problems, the wagons were quickly circled.

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The first inquiry was halted after allegations that its terms and processes were anything but fair and transparent. A second inquest that begun in 2012 resumed this week. This inquiry is also mired in controversy. Lawyers for the Correctional Service of Canada made repeated motions to have various pieces of evidence speaking to Ms. Smith's mistreatment blocked. Included in their bid was the footage of Ms. Smith being duct-taped and hooded on a plane as well as the video showing her held down on a gurney by several guards as a nurse injects her with an unknown substance. In this video, Ms. Smith's protestations are clearly audible.

Sadly, Ms. Smith's case, though perhaps the most sensational in recent history, is hardly isolated. Mr. Sapers recognized this in his recent report detailing the inadequacies of the penal mental-health system. I would go further and argue that a culture of lawlessness and wanton disregard for prisoners' rights – let alone basic dignities – continues to pervade the Canadian penal system. These same sentiments were first expressed by Madame Justice Louise Arbour in her scathing critique of the penal system almost 15 years ago.

In the fall of 2012, Julie Bilotta gave birth alone in a segregation cell at the Ottawa Carleton Detention Centre because the guards didn't believe she was in labour. Peter Collins recently won a human-rights complaint after revealing that while incarcerated he was charged with multiple disciplinary infractions for 'not standing when asked' despite the fact that he had suffered a disabling spinal injury which prevented him from being able to stand upright. I routinely receive letters and e-mails from current and former prisoners detailing the abuses they have allegedly suffered while in custody. The most recent was a letter from a woman telling me she spent five days in solitary confinement because she would not wear a bra.

Even as these abuses continue, officials – both penal and government – do everything they can to shield prisons from criticism. Researchers on prison conditions come up against formidable and routinely insurmountable obstacles when trying to gain access to prisons for research purposes. Reporters often experience the same gate-keeping. The only people for whom access to a prison cannot be denied are members of Parliament, almost none of whom bother to make use of this privilege.

It is a social ill that state-run institutions responsible for the care and control of thousands are almost never held to account for their actions except in the most egregious of circumstances. The situation is dire not only for prisoners – who are meant to be incarcerated as punishment, not for punishment – but also for the wider society to which most of these individuals will one day return. The culture of lawlessness and inhumanity in Canadian prisons can only be shifted once the bunker mentality of officials is corrected.

The denial of rights and protections to prisoners is a violation of the laws of this land and ultimately an affront to the democratic principles that shape this nation. If for no other reason than this, our concern for Ashley Smith needs to be the beginning and not the end of a shift in the penal culture of this country.

Dawn Moore is associate professsor of law and legal studies at Carleton University

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