...with Prisons and Justice in Canada (Ep. 46)

Prisons are really a microcosm of our communities, and so when we look at who we are imprisoning most, it tends to be those who have the least privilege. So, right now, Indigenous women, those with mental health issues, are the fastest-growing prison population. And so, we know those are the people who actually have the least amount of privilege, and who we should be working to bring up the floor, not just let them fall through the floorboards and worry about our ceiling.

My name is Ben Sharland, and you're listening to "What on Earth is Going On?" My guest this week is Senator Kim Pate, a remarkable woman who has spent over 35 years working in and around the legal and penal systems in Canada on behalf of some of the most marginalized, victimized, criminalized, and institutionalized people, especially women and girls, especially Indigenous people, especially those who are on the edges of society.

From 1992 until her appointment as Senator in 2016, Kim was the executive director of the Canadian Association of Elizabeth Fry Societies in Canada. Now, that's an organization that advocates and works on behalf of those who are caught up in the prison system, not to condone what they have done, but to bring about positive outcomes.

Kim is also a member of the Order of Canada, a recipient of the Governor General's Award, the Canadian Bar Association's Bertha Wilson Touchstone Award, and she has five honorary doctorates.

In this conversation, we talk about a lot of different things, of course: prison and criminal justice reform in Canada, what that looks like, what might be coming, populism, privilege, marginalization, and the dehumanization of the prison population, solitary confinement, segregation in prisons, what it feels like to be in jail, what happens when prisoners believe everything that is said about them, everything that is written about them, and that's all that they have to experience about themselves, what to do about gangs, and why the system is actually working exactly as we intended, and therefore may have to be reformed from the ground up.

Finally, I think a key theme in our conversation is the simple versus the complex, the easy answer versus the hard one, the known versus the unknown, and the short versus the long term. It's a really interesting conversation, and I hope that you let me know what you think about it. You can go to the website, whatonearthisgoingon.ca, to get in touch with me with your suggestions for future episodes or feedback on this one, and to listen to all previous episodes of this podcast. You can also get in touch on social media. Logo podcast or WOEGO podcast is the handle on Twitter, Instagram, Facebook, and LinkedIn. Finally, if you can send me an email and let me know what you think.

Anyways, without further ado, here is Senator Kim Pate in Ottawa.

All right, Senator Kim Pate, welcome to the program.

Thank you. I'm really excited and privileged to be here in your office at the Parliament of Canada.

Oh, it's wonderful to have you here, and as well, an amazing privilege to be in this office and to have this kind of place to work for him.

Now, yeah, it's got a great view. You're looking, I can see the Supreme Court, I can see, obviously, West Block where the House of Commons is now sitting, and Centre Block, which is being decommissioned and renovated.

Yeah, no, it's, it's a really, it's a beautiful place to work, I think, and but also quite symbolic. I think you're reminded every day of what, of what your role is and what, why, why it's so important to be here at the center of the political discussion, and of course, the discussion of what you do, which is penal and criminal justice reform in Canada, which is a really fascinating topic. And we're going to get to that in a few moments. But before we do, I just wanted to preface our conversation and say that I'm really excited to talk to you partly because, of course, your background, you spent over 35 years working in the penal and criminal justice reform. But you're also a senator who has to deal with a lot of other things. And I think that you, as a senator, may in fact be the ideal person to talk to on this podcast. And that's because you have a very specific background and focus that you've been working on, but you're also tasked with asking, on behalf of Canadians, "What on Earth is Going On?" every day, right? And, and you have to see the big picture, you have to see the forest for the trees. And I'm really excited to ask you the first question, which is always the same: Senator, what on Earth is going on?

Well, I think in terms of where Canada is going, I mean, a lot of people are mired in the weeds right now around particular political controversies. I think in the, the big picture, we are trying to decide whether we move ahead in the best interests of all Canadians, or whether we continue on a trajectory that allows certain groups to enjoy more privileges than others, and certain groups to be treated in, in ways that are that provide more opportunities to get ahead than do others. And I think there are many, many Canadians struggling with that issue and really concerned that we are, we're not going down the path that our neighbors to the south, or others in, in the world are going, in terms of looking at more populist approaches that generally don't take into account, although they're built on taking into account the needs of the of the population, they actually don't.

That was the, the first episode of this podcast was "What on Earth is Going On with Populism?" And of course, populism and the people who use this tool, which is the power of the people, that people deserve to be in power. And it's not untrue. But of course, who are not the people? Right? And there's always an "on-people" in there. In order to achieve power, there's always an enemy, whether it's the elite, or immigrants, or criminals. Obviously, with the work that you do, people in prison, especially Indigenous people in prison, women in prison, are the other. They are not part of the people. When people like Doug Ford, for example, says, "Or, you know, what is it? What's his thing? For the people?" That's a slogan in, in office, as well as in his campaign.

Well, if you're in, if you're for the people, who are you against? Who are the people that are not the? And it, this is getting semantics and almost redundant. But who are not the people? And I think in your work, often, that are the people in prisons.

Mm-hmm. Well, and people who are on the margins generally. I mean, one of the realities is, when we're talking about populist approaches, the scary thing is that they're appealing to people who have the least by promising that they will get more, when in fact, all their actions go towards increasing the privilege and power of those who already have a lot. And I'm always struck by the one of the first things when I started working with the national office of Elizabeth Fry, that a woman in prison said to me that has stuck with me for a, you know, forever is, "If you just come and parrot what I say and don't actually work with me to and share information with me so that I can change in my views or I can learn more, create new opportunities, then it's just as disrespectful as if you ignore my views altogether." And I think populism often pretends to be listening to people where they are, but never actually goes about sharing the power and the resources in the way that people think they're promising. And so I think we have to, we have to really look at that in Canada. And I'm, I'm, you know, really encouraged by since I've been here, working with the anti-poverty caucus, which many people didn't even know there was an anti-poverty caucus in Parliament, working with groups that are interested in things like guaranteed livable incomes and universal pharmacare, dental care, as well as healthcare, and really looking at how do we really equalize and and bring people from the margins into a place where they have more opportunities to be part of, part of decision-making. And for me, yes, that does include people who are imprisoned, because prisons are really a microcosm of our communities. And so when we look at who we are imprisoning most, it tends to be those who have the least privilege. So right now, Indigenous women, those with mental health issues, are the fastest-growing prison population. And so we know those are the people who actually have the least amount of privilege, and who we should be working to try and shore up and bring up the floor, not just let them fall through the floorboards and worry about our ceiling.

Right. Then there's something that's implicit in your answer there, which is that these are complex problems with a lot of nuance. There is no, I mean, populism by definition gives simple solutions to complex problems.

Well, that's okay. All we have to do. Oh, so you don't like low or high taxes? We'll just lower them. Period. End of story. Well, there are complications that arise from that, and there are many, many trade-offs in government and in any policy of any organization. And simply to have a simple solution will cause complexities down the road, which I imagine a populist will try to just bury and pretend aren't happening, because it's easy to have the big banner message. And of course, with prisons, it's something that we can often forget. We don't want to think about it, right? We don't, we'd rather imagine that these things are not part of society and that they're tucked away behind the corner, behind the hill somewhere.

But one thing that you've said that's really interesting, and I, this is a chance actually to mention your podcast that you've started called "Appointed." And one thing you said at the end of your first main episode was that we should invest in communities, not prisons. That when we invest in just more barricades and walls and divisions and prisons, we're actually causing more harm than good.

Yes. That there needs to be some kind of criminal and penal justice system. We can't just do without it. That would be a populist solution on the other side. But, but these are our communities, and they're a microcosm of what already exists in our societies. And I think that that was a really salient point. But how do we do that? How do we invest in communities, not prisons? I mean, is it, I know it's a complex answer, but where do we start?

Well, I think we could start with some of the approaches that impact those who are on the margins, but not necessarily in prison, some of whom may have been criminalized, some of whom hadn't. And so things like income distribution is really important, and as our equal access or more equitable access to healthcare, dental care. Because many of us, if we have jobs, have programs, employment programs that allow us to have health care, dental health care, pharma care. If you're on social assistance, you may have access. The working poor generally don't have the same access. If you're working for minimum wage or if you're a student, some, you know, it's increasingly difficult for you to access those resources. And so really shoring up some of those areas. And, you know, in the mid-80s, when we eliminated the Canada Health Transfer in exchange for giving provinces more leeway over what to do with tax dollars, we traded off some of those national standards of which Canada was historically rightfully proud that we had a national, available system of our social safety net that made sure, you know, people didn't drop through. And increasingly, that social safety net has been rented with tolls, as people are literally dropping through and and not having those opportunities. And so then we have populist responses that say, "Well, it's the poor. If you just pull yourself up by your bootstraps, you'd be okay." When increasingly, we've got people who don't even have boots, metaphorically. And so, so when we see who's in prison, we see that those, that is really an example of every system that has failed, whether it's social services system, child welfare system. We know for Indigenous people, the historical impact of residential schools, then the state removal, forced removal of children through the child welfare system, and the way that those systems are really a pipeline right into the prison system. And in fact, still, in some, some residential care settings for youth, you'll have beds that are designated as beds for kids who have been criminalized, and beds for those who are in child welfare beds, who are those for those who have mental health services. Is, you know, in the past, those would all be in one, one home or one institution, sometimes. And so we see that the, the long-term impact is that we've just literally shunted people in. And we, it's, they are, it is the only system that can't say, "You know, sorry, our beds are full. Sorry, we have no room left. Sorry, you don't fit our mandate." It doesn't take much to be criminalized. I mean, you, how many police officers have I talked to who are trying to get someone somewhere other than the prison cell? And they, you know, do incredible intervention, going to psychiatric hospital after psychiatric hospital, trying to get someone admitted because they know that the person they picked up on the street, who's perhaps paranoid, perhaps in the midst of a psychotic episode, really needs health and mental health support, not prison. But if all of those systems don't take them, then the, you know, they, and with the place that they, if they know they can go, because the person can be charged with nuisance or mischief or there are some other vagrancy, some other charge. And so you can take them to the jail and at least have them temporarily detained. And so we start out with many people. You know, a lot of people will say, "Well, it's, you know, it's because we have people who are not trying to assist." But in fact, I think it's quite the opposite. Sometimes, even when people are trying to be, you know, ensure that people's needs are taken care of, we're resorting to the only system that can't turn people away.

Well, it's interesting here, we're talking a lot about simplicity and complexity, right? And simple solutions in a complex world. And it seems like the entire prison system itself is a very simple band-aid solution to the very complex problem of not just criminal behavior, but marginalization of people who feel like they have no other choice but to, whether it's join a gang or or resort to theft, or because they have violence in their past and they don't know how else to solve their problems. You know, we, it's, it's almost a cliché now to mention that people who were abused go on to abuse. And that's a systemic problem. But our, the way that we try to fix that problem as a society is simply to put people away. It's obviously more humane than say, to, you know, put them to death. Capital punishment is not something we practice anymore in Canada. But it seems like it's so simplistic, and it's one size fits all. Now, of course, we don't want to have a prison system that is on par with hotels, which have different rooms for different people. And it, this is not what we're talking about. What we do need some kind of nuance to deal with different people with different problems. It seems to me that otherwise, you get a system that makes that, actually, I'm going to quote something from the podcast, from your, from your podcast "Appointed." There was a guest on the program who said that solitary confinement and segregation, which is something that you've fought against quite a bit, makes good people bad and bad people worse. It seems to me that that's not just solitary confinement and segregation, that's prisons as a whole. And we call them "Corrections." Are we not missing the point here that we want to help people be better than they are and improve, rather than just put, marginalize them?

Yeah, absolutely. And, you know, when Renee said that, I think she was actually speaking, she was speaking about segregation, but certainly jail itself. I mean, she's a perfect example of someone who came in on a relatively minor charge, was, is very bright, was able to articulate what she knew the law was, and he was very articulate in her. And every time she challenged, that was perceived in a negative way, as though somehow it wasn't just her advocating for herself and other women inside, but that somehow she was engaged in some sort of nefarious activity aimed at undermining the system. And so, you know, the, you know, many people have described that in, in a prison context or in a criminal justice context, is very difficult to encourage people to focus on the positives. And I often will say to students or people I'm working with that, you know, to try and imagine, really to imagine what it's like to be criminalized and imprisoned, is to think about yourself, everything negative you've ever done in your life. And if you are Indigenous, that means from birth, because you're registered. And think of everything that you've ever done that would be described as negative in your life, and put it in a file. And how many of us would have the jobs we have now, would have been able to get the education we had, would actually be in the positions we are, if that's how we are introduced to people? But that's actually how people who are in prison are introduced to the staff, is by everything negative in their file. And as they move, and the best horrible example we have of that is Ashley Smith, when she died after being segregated for 11 and a half months in the federal system, moved 17 times. Many staff described how they really liked her, but they knew how bad she could be. And when asked at the inquest into her death, how they knew that she was bad, it was because they had read her file. And only when we started to see the file unfold with the video evidence that went along with what was described in the file, do you see that they had, no, sometimes they had, they were diametrically opposed. You'd see someone sitting calmly on a bench being described as out of control, requiring to be gassed and forcibly injected. And so, you know, that's something that oftentimes we don't think of, that we, if we start out with a preconceived notion of who we're dealing with, then we treat them in a very different way. Whereas, for instance, if we started out knowing that 91% of Indigenous women in prison, 87% of those overall, have histories of abuse, many of them are in prison when they're in for violent offenses because they're reacting to that violence, many of them are in for drug-related or alcohol-related charges because they've anesthetized themselves to that violence, and that is sometimes history of residential school, either direct, their own, or their families. And when you start, and when you see that most of their violence is reactive to that violence, then you have a very different picture than the predatory acts of violence that most people think of when you think someone's in for a violent offense. And that doesn't mean you excuse it, but it does mean you contextualize it in a different way, and you treat people differently, and you expect, you have expectations of positive behavior, not just negative behavior.

Well, it's so interesting because we're talking about humanizing and dehumanizing, right? And that prisons have such a powerful way of dehumanizing people. And I think that one theme of your work and your career has been to humanize these stories and to find the human beings in the prisons, in the marginalized communities, and amongst the people that we're reading bad stories about that dehumanize us to their experience and make us feel like they are again, the other, on the other side of the fence, of the other side of the hill, or, well, in many ways, on another planet. They don't belong in my category of people at all. And yet, all you have to do is have one brief dialogue like we're having now with somebody to realize that someone's a human being with emotions and feelings and thoughts and a past, and, and the right to dignity.

Mm-hmm. And yet, the prison system, as it would be, probably almost in any country, seems to run off of fear and dehumanization, because it's really difficult for a prison guard, for example, to do their job without feeling, you know, if they're, if they're dealing with human beings every single minute of every single day, at some point, you have to kind of distance yourself from your work. And, and it becomes dehumanized. And then, and that allows you to do some awful things. But you mentioned Ashley Smith, which seems to me a story that would get anybody involved in this work. It's such a clear sign of what went wrong. But you got involved a long, long time before that. So I'm really curious as to how you got into this. I mean, what you've been, you've been driven to do this stuff for a very long time. And what was the, what was the, the initial, initial reason for that?

Well, the initial, I was working at Dalhousie Law School in the legal aid clinic and was going into the prisons. I had done an independent research project on the pending Young Offenders Act, that's how old and long ago it was, how old I am and how long ago that was. And so when I started doing the work and went into the courts, because one of the, one of the judges had actually been one of my professors and knew I'd been doing this work, I quickly was assigned many of the cases. So I was doing this work, and I very, almost immediately saw that the majority of the young people coming before the courts were poor kids and racialized kids, and many of them from Preston East, Preston Cole Harbour, because I was in Halifax, and most of them black kids. And that clearly wasn't who was the only people doing things that could be criminalized, but it was who was being more likely targeted and ending up before the courts. And then I went out to Alberta and was volunteering with young people and, and started to see again, the themes of in more, mostly Indigenous young people. And then went into the prisons working with men, similarly Indigenous men, racialized men, poor men, increasingly starting to see people with mental health issues and intellectual disabilities inside, as well as the sort of the backlash to the deinstitutionalizing that had happened a few decades before. And as we, you know, deinstitutionalized mental health and in places where those with cognitive disabilities were placed, one of the things we didn't do was shore up the community and make sure those resources were available, or if we did, we then removed those resources as we started to look at deficit reduction types of ideas. And so the easiest to cut were the resources in the community. And so the prison started to fill up with those. And then when I started working with women, I saw even more clearly that we're talking about those who had been victimized, those who were marginalized, and really were the folks that weren't getting opportunities on the ground, or or were left behind by whatever, whether it was the school system, community, and, and so that really was what, what pulled me. And I was initially looking for how could we improve the system, and then started to realize that the problem is the system is working the way it was intended. We actually have to, you know, reconstruct and deconstruct. And if we really want to breathe life into the equality provisions of the Charter, for instance, which came into play about the same, well, three years after the Charter was in the Constitution was repatriated, then we really have to do something different. So that was one piece. And then the other piece was really what I think has happened. I've watched senators as we've been doing the Human Rights Study, because the, the Senate Human Rights Committee, within a month of me being appointed to the Senate, decided to do a study of the human rights of prisoners, totally unrelated to me being here, but serendipitously was as I joined. And every senator, and I remember in particular, one senator who was had been part of the previous government, and commenting that this young woman looked just like her daughter, her daughter's friend. And, and everybody talked about the fact that we were going into prisons and seeing people who, you know, could be our children, some of us our cousins, our brothers, our sisters, our parents. And I think part of what we need to do is humanize and realize that the people we're jailing are members of our community, and often people who have already suffered an enormous loss in all kinds of ways. And yes, sometimes they're engaged in really heinous behavior, but almost always those monstrous acts can be put into a context, and not in a way to excuse, but in a way to understand and try and prevent other people from facing those realities.

Sure. And that's obviously the devil's advocate, like I'm not, I don't come from that school of thought where you're all responsible for yourselves and everything is free will and there are no social or contextual factors that affect anything. But, but I do have to just raise that point. How do you combat someone who says, "Well, don't you have to again, pick yourself up by the bootstraps? And if you got no boots, go get yourself a pair of boots." I mean, there is an argument there for self-determination and what choices you make in your life. I mean, there are many examples of people who are in an awful situation and find their way out without resorting to violence or crime. And, and how do you respond to that devil's advocate? How do you respond to a very, again, it's a very simple, and maybe even populist argument, which is, "Well, just let people figure it out for themselves. And if they are out of line, then put them off. Let them become the other, let them become dehumanized."

Yeah. Well, the thing I usually say is to ask everybody, because most of us will, if we're being honest, know that we've done things for which, if it was known, if it was pursued, if we were prosecuted, we could have been criminalized. That the majority, we don't do, as far as I know, self-report studies anymore because of ethical issues. But it used to be, you do self-report studies of kids in grade 12, and you'd find everybody had done something for which they could have been criminalized. And so we know that there is abundant evidence that there are all kinds of protective factors that prevent some of us from ending up in the criminal justice system, whether it's our families, other people we know who provide a hand, teachers who are really instructive or important in our lives and provide some, some measure or some idea of a new, a different path we could take, or really practically, the police officer who picks you up but sees some potential and stays and supports you to do something different than and doesn't charge you. And, you know, I'm struck even, you know, as the committee, as we were considering some of the legislation that's currently being, you know, talked about in the news right now, when our legal committee was considering the legislation that allows corporations to avoid criminal responsibility, I wanted to know what the genesis of that was. Because my view is that if that's available for corporations, why wouldn't it be available for individuals who are charged in the criminal? That if a large company can say, "Mea culpa, I'm sorry, I did wrong, I figured it out now, I'm trying to correct it, and that won't happen again." Imagine if we allowed that for more and more people in the system. It's why the one of the most litigated areas of criminal law is impaired driving, because more people who have resources and power and the ability to hire lawyers and to pay for their own treatment get charged with that. So it's one of the few areas where you can avoid a mandatory minimum if you go to treatment and the crown agrees. Well, who's the crown more likely to agree to that option for? Probably not the person who has, has a car that also isn't insured and is struggling to, to get to a job and has a couple of beers too many one night and is stopped at the check stop. Maybe it's the person who has, you know, a well-paid job, has, you know, relies on being able to get to and from work. Well, you know, I mean, basically, we know that certain individuals are more likely to be privileged by that than others. And so again, that doesn't mean we excuse the behavior in any part, but to really understand that we, we make those decisions all the time. When I say we, may not be me personally, but whether it's police officers in terms of whether the charge will be laid, whether it's a crown and whether to pursue the charge, the judge in determining whether they'll accept that the person is pleading guilty or will find them guilty and the sentencing, and, and then once they're in the system, if they're, if they, you know, end up in the system, how they're treated within that, whether they get access to some of the provisions that allow you to release people earlier, and or whether they are kept till the end of their sentence, whether they have other measures taken. So I think there's a whole many places where we have that discretion. Increasingly with mandatory minimum penalties, judges will say they don't have that discretion. And, but some judges will refuse to impose them. And in a, certainly part of why I introduced the private bill S-251, which was aimed, it was really modeled on the, the bill that Aaron Kotler had developed, allowing, and very similar to the model that's used in places like the UK, that allows judges the discretion to not impose mandatory minimum penalties where they feel it's not appropriate, and they can provide reasons for that. And so I think there are other things we could be doing, and hopefully we can keep moving in that direction.

One thing that Kim has said that has really struck me, and she's repeated this multiple times, is that prisons are a microcosm for the greater society. And because they are a microcosm, they are also the accumulation of everything that has gone wrong in our society, of all of the social structural issues at play, they all surface, they all manifest in the prison system. Now, coming up in this conversation, we talk about a lot of things, including some statistics that I think will make your head turn. We also talk about the experience of what it's actually like in prisons, and some bills, such as C-83, that Kim Pate has been working on, and why they might not be all they're cooked up to be. And there's an interesting quote coming up that if we're in the business of putting people in prison, if we don't know what the conditions are and don't know what the result will be, then we are actually acting just as irresponsibly than if we just ignored it in the first place. All that's coming up on this episode of "What on Earth is Going On?"

I just want to point out something that you just mentioned, talking about privilege. This whole concept of privilege, which I found really interesting. And that's what we often think of with privilege is that, yeah, I, if I'm a white male from a, from a well-to-do family, middle class, then I can afford lawyers to avoid penalties, I can, I can certainly have a much better chance of fighting my way through the system. But I'm also probably in a position where I don't need to resort to certain behaviors. I'm socially conditioned, and I probably have parents who didn't abuse me. There are a lot of factors that are at play there. But one thing that you mentioned that we don't often consider is, if I'm pulled over by a police officer because I would, maybe I'm drunk driving, for example, and I am a white male, he may unconsciously bias himself towards me or herself because I'm a white male and like you just said, "Wow, this guy deserves another chance. This guy's probably got a good life ahead of him, and I don't want to ruin it with a DUI which could totally detract his life and all he can get is a crappy job because no one will hire someone with a criminal record." And he's going through his head and thinking, "Okay, I'm gonna give him another shot." If I'm Indigenous, if I'm a woman, if I'm in any marginalized community, subconsciously, that same police officer might think, "Well, I don't know where this person is going. This is probably just indicative of a streak of bad behavior." Now, all of the training that they go through may may submerge that deep inside of them so that we can't detect it. But how much is unreported or underreported? How much crime happens or quote-unquote crime that we, that seems harmless, that has no victim, and that we don't punish for some people, what we do for others? And it's a funnel for the justice system and the penal system that is, I mean, we talk about it all the time when we talk about privilege, but it's very hard to detect. And I just, I guess my question here is this: How do we, how do we get better at that? Or is this just a long-term slog? I mean, maybe we're a little bit more balanced this year than last year, and in another 50 years, we'll finally root out some of these subconscious biases. That seems like a long time. But does that, the only real way is just for time to take its course and for progress to happen? Or do we really need to have more overt, concrete action today to unroot this stuff?

Well, I think we do need more action. And, and certainly, I'd like to see some change within my lifetime. And, you know, I've got another 16 years here if I don't kick it before I turn 75. And I think it's really important to use every opportunity. I mean, part of what we agreed to when we take these positions is to be concerned about Canada as a whole, and in particular, what I refer to often as minority groups or marginalized groups, and to, to not necessarily just focus on the issues that elected officials would be focusing on. That, yes, we shouldn't get in the way of government work, but that we, and certainly something the government, if the government has been elected on a certain platform, we should be supporting that, which is part of why I introduced the bills that I have, incidentally. But that we also have a broader, long-term responsibility to, to be looking at how we move things forward. And I think there are some things we can do. I mean, just with the Youth Criminal Justice Act, for instance, when it became clear, when we were jailing young people at eight times the rate we were jailing adults for a period of time, the Youth Criminal Justice Act was introduced to try and rectify that. And a provision that's in there that cut in half the number of young people in custody was a provision that required judges to indicate why they were using custody, not the child welfare system, not the mental health system, or not the education system, and to give reasons as to why they thought a custodial sentence was the only option available. That change alone in legislation cut in half the number of young people in custody in this country. And it was done under the previous government.

And why do you think that is? That simply normally I wouldn't have to answer for my decision, so I'm just gonna go with the easiest route? Or, well, if all you have there available as you see custody being provided as an option over and over again, being reminded by a change in the legislation that this is problematic, and that's actually not the approach we should be taking with young people, was really important. What's also instructive, though, is it laid bare those biases that you were just talking about, because who was left in the prison system were girls, particularly Indigenous girls and Black girls, depending on which part of the country you're in. So, for instance, in, right now as we're sitting here, 98% of the girls, young women and girls in custody under the Youth Criminal Justice Act in Saskatchewan, 98% are Indigenous. A hundred percent in the Northwest Territories. And the number varies across the country, but where it's about 60% of the girls in custody are Indigenous in this country. And so it laid bare the biases of the system. And what we, so, you know, some people would say, "Throw their hands up and say, 'Well, now, to what do we do?'" Well, I think it says we actually really have to shore up the opportunity to say there that are available for young Indigenous, Indigenous women, and to look at the links between that and missing and murdered Indigenous women, the links between that and commodification of girls, and the pushing to the margin and the trafficking that we know that is happening, and really address those issues. And if we actually address those issues, then we could do a great deal. And I'm often reminded of, I, I used to use it in a course that I taught, one of the quotes by Anatole France from the 1700s. And it, I can't remember the whole thing, but the end is something like, "The law applies equally to the rich and the poor. Neither is permitted to sleep under bridges or steal bread." Well, when you think about it in that way, nobody's allowed to. But who's more likely to be in a position to be sleeping under bridges or stealing bread? Is certainly not going to be the wealthy. And so it's not that it's just wealth, certainly race and class come into it, and ability, whether it's mental health issues or intellectual issues or physical abilities. But we know that the more someone is is has the intersecting the areas that they by which they can be discriminated, the more chance they'll be in the system. So, so why is it then, it shouldn't be a surprise to us that women, particularly Indigenous women and those with mental health issues, are the fastest-growing prison population? What we should do to unpack that is turn it around and say, "What do we actually need to provide so fewer of those women are ending up in the system?" Because most people, when they think about who they're afraid of, I mean, if they're walking at night or whatever, are not thinking of a whole bunch of poor Indigenous women's mental health issues as who is likely to cause them the greatest harm. And so what we're, that's who we're jailing at increasing rates.

What will happen? That's an extraordinary statistic, 98% and 100% in the Northwest Territories. I don't see how anybody could read or understand a statistic like that and not feel that action needed to be taken immediately. And, and obviously, the action has to be on a social and then large scale. It's not about talking to individual people and looking at their, you know, I mean, obviously, we can, we can be qualitative about this and say, "Well, how did this one person get funneled into the system? Where did what are their, the antecedents for these behaviors? What were their parents doing? What are their social circumstances?" Of course, that's important. But this is in the aggregate. 98% is a lot of people. And the, to what, and the 2% is almost irrelevant in that statistic. And of course, if it's 100%, well, then obviously. And it begs the question. Obviously, we've talked about what we can do. But there's also things that are in here that may seem unrelated, but are related, like dental, for example, dental care, pharma care. I've always thought that first of all, it's funny that we have a healthcare system that doesn't take care of dental work, which is so central to, to physical health. It's so close to the brain, in fact. And a lot of people who live on the street and their teeth decay. There's a direct link between the, you know, like a deeply rotten teeth and infection of the brain, which can lead to all kinds of mental illnesses. Well, that's such an obvious link. And yet, we, we see them as two separate things. And I'm not saying that, you know, if we instituted dental healthcare for everybody in Canada, we would solve all problems. Of course, but the matrix of how, of all these things fit together is much more nuanced and complicated. And I think it goes back to your comment that we need to invest in communities as opposed to the system that is simply the funnel away that allows us to dehumanize and marginalize a whole aspect or a whole portion of the population.

One other thing that I wanted to ask you about on this subject about prisons is, you've spent a lot of time in prisons yourself in your research and in your work and in just talking to the people who are there. In fact, one of the pictures I saw when I was doing my research was you with your ear to the to the door of a cell, listening to an inmate. I don't know if you're having a conversation with them or not, but you've clearly spent a lot of time there. What most Canadians have never been to prison, whether to visit or to be institutionalized. We obviously watch a lot of movies about what they're like. But what can you tell us about what prisons are like that we might not expect them to be? What, what is the ethos or the atmosphere of a prison? What's, what are we as Canadians who have never been to one, what are we, what should we understand about them?

Hmm. Well, I think, I mean, I remember my son saying it better than I could describe it at one point when I was trying to describe to someone else segregation. So when he was about three and a half, he was in the prison for women with me. And we went down to see a woman, and he saw the segregation cell. And he said, "You should describe it to people like it's like being locked in your bathroom." Now, our bathroom was not very big. Now, sometimes people have huge bathrooms. Now, but it's like being locked in your bathroom, and where the bathtub is, is where your bed is. And if you have to share, then there may be a bunk bed above that. And where your toilet is might be where your toilet is. And then there might be a shelf where you can put some of your things. And that's basically it. And that's where you live for sometimes 24 hours a day, even though by law, you're supposed to be out at least half, maybe three or four hours a day. And most of us can't imagine having our world closed off that way. I mean, I have a beautiful office here. If you locked me in here instead, I could not go out of here for even, you know, for except one hour a day. Soon this office would not be a beautiful office to me. It could look nice, but it would be a confining space. And feeling that I can't even imagine. I mean, most of us can't imagine what it's like to have our liberty curtailed in those ways. And, and then if you add on to that, to people who are actually increasingly trained to believe you deserve to be there, no matter what your background has been, no matter what the circumstances are. And not everybody comes, and most people go into prisons wanting to, to do good and, and assist people. It's shocking, I think, to many of us, including me, even after all these years, the number of staff, as we've been doing the prison study, who have come and talked about that very aspect of how dehumanizing the entire process is, not just for prisoners, but for staff as well, that you actually start to see your fellow human beings as less than or less deserving of, whether it's, you know, food, the quality of food, liberty, access to programs, education, any of those things. And, and I think part of the reason many of us feel we need to open up the prisons more, people to see who's actually in, as I think it's, it's like a, it's like a box that people go into, and not much attention is paid. Even by lawyers who are trained in criminal law, very few have any idea what happens once the sentence is administered. And, you know, Louise Arbour said it better than I think any anybody else I've heard say it. She said, you know, "If we're in the business of putting people in prison," whether it's as parliamentarians, judges, lawyers, I would go so far as to say also police officers, and the members of the public who vote in those ways, "if we don't know what the conditions are the people are facing, and we don't know what that will result in when they, if and when they leave prison, then we're, you know, it's, we're acting in an irresponsible way that we need to know that what we're doing is actually somehow going to benefit the community." In the

Long or and whether it's just by separating someone for a while, whether it's by providing improved situations so that when they come out they won't be engaging in the same behavior. But too often, we don't think very critically around those areas. We just, you know, including when I started doing the work, I thought, "Only I, you do the crime, you do the time," right? And it's so trite. And yet, you know, what does that mean?

And and most people in, you know, I've worked with a lot of folks who have been victimized. And most people, you know, will say, what they really want as someone who's been victimized is to ensure one, that whatever the person did that harmed them isn't done to anybody else, and that whatever was that motivated that person is dealt with. And so they're not going to be engaged in the behavior. And, you know, sometimes people want to be have their own situation remedied as best as possible as well. But, you know, that's not what we're generally doing in the system. We're generally talking about exacting punishment as opposed to really correcting this situation or addressing the harm that's been done.

Rene was the name of the guest that you had on your podcast who was in prison. And she was the one that said, you know, "The good become bad, the bad become worse." Another thing that she said that I thought was really striking to me was that she started to believe the things that were said about her. And so she came into prison not necessarily feeling innocent, but certainly feeling like a human being who had complex emotions and feelings and thoughts and a backstory. And by the time, in a short period of time, because of the way the institution works, because of the way that she was segregated from the population and the way that she was treated by the staff, she quickly felt to herself, "Well, am I a bad person? Am I, am I just a bad egg? Maybe I am. Maybe, maybe all of this information coming at me is telling me that I'm just a bad person." And if that's what I believe about myself, that's what Renee believes about herself, it's pretty hard to turn away from that and leave prison thinking, "I'm gonna go be good." Well, you're a bad person. This is who you are. So you might as well just continue on that path and be yourself.

To transform a paradigm of a person and make them feel what, what we all think of them, which is as inhuman, or on the other side of the, of the hill, I think can lead to, not just on an individual level, but on a social level, lead to really negative outcomes that we don't want as a society. That no politician, no citizen would vote for in any circumstance. And yet, that's the obvious result. People who could become bad, the bad become worse because they believe that that's true, because they're surrounded by it. And yet, it's such a difficult problem to solve.

And so one thing that you're working on at the moment, I know, is the legislation that's going through Parliament. I believe it's C-83. Is that right? Is that C-83? They're C-80-81. The legislation is, there was C-51 on C-83. C-83. Yes, it is the 83. Okay, great. And that's the one about essentially the criminal justice reform led by the Government of Canada to get rid of segregation and solitary confinement. But what's actually happened, and that you've commented on, is they're just getting rid of the language. They're not actually changing the institutional behavior. They're not actually changing the codes. In fact, by getting rid of some of the regulations, they're making it more permissible to staff to do some pretty awful things. And my question is, for a government that seems pretty conscious and progressive on these issues, why would they, why would they do that? Is it, is it just ignorance? Or is it because it's just too hard and they'd rather not push against all of the inertia? Why do you think, like, yeah, why do you think that that's happening?

Well, I think there's a presumption that progressive ideas around social and criminal justice are not vote-getters. And that people want to hear tough-on-crime types of approaches. I actually don't think that's true. I think on a knee-jerk reaction, if you say to people, "Should someone who's done a crime do the time?" They'll say yes. If you peel it back just one layer, I mean, all the work that people like Tony Do, Bandshell Webster, and others have done around what people actually think, is if you just peel it back one layer, most people actually want to see meaningful change, not just a knee-jerk response to put people in prison and punish people. And so I think part of it is political will. And in the case of C-83, it's pretty clear that, you know, I think the Minister may very well be committed to getting rid of segregation. I certainly don't doubt when he says that. He probably doesn't have a clear idea of what's actually happening now in the prisons. And I don't think you get that unless you go into them, unless you're talking to people inside, both staff and prisoners. And so he may actually believe that just by changing the perspective or changing the name and changing, putting more human contact in, will actually actually change it.

But already, just in the discussions that we've had so far about that bill, healthcare professionals are saying, for instance, that in order to have a face-to-face contact with a prisoner, corrections is going to put two more security staff with them when they go and do those health visits. Now, my response to that is, if you're a healthcare professional, you have other professional standards that say you provide voluntary treatment. And if it's voluntary, why would you need two guards with you every time you're providing treatment to someone? And until I ask some of those questions, even when I do, they say, "Well, I may be at risk." Well, why would you be at risk if the person is voluntarily engaging with you? And so, just that, to me, is emblematic of how little the system will actually be changing. That in fact, to put in place a situation that is supposed to be about desegregating the prisons, we're actually going to cause them to be hunkered down more with more security staff, fewer programs, fewer opportunities, even though it's under the guise of that. As well as, you mentioned, some of the procedural safeguards are being removed that exist now. And really, the genesis or the impetus for the bill 83 really seems to be the court cases that have been brought to challenging solitary confinement. And they're again, even the lawyers who are involved, you know, often don't know what's happening within the prisons. And most of the lawyers I know didn't realize that all of the federal maximum-security prisons have become more and more a series of segregation units rather than the general population that used to exist in just one or two segregated areas. And so that's a piece.

The other is, you know, in all different kinds, when I say we could actually work to eliminate segregation, ultimately, the first thing people raise is, "What about public safety? What about the safety of other prisoners? There's gangs and gang affiliations." Well, I'm working with folks who are doing work to encourage men, in particular, to relinquish their gang affiliations once they're in prison. Because the reality is, they have to figure out some way to do that if they're going to get out of prison, to cascade through, to get to lower security. They're going to have to figure out how to live together. And it's in certain contexts where gang affiliation is given more credence. And I'm linking this to what Rene said as well, that, you know, when I was working with young people in the West, there were two different approaches taken by different police forces. One was to say, "We have gang problems." That became really prevalent in Saskatchewan, Manitoba, and Alberta. The focus was more on, "We have issues around youth feeling disenfranchised, not involved." And they could have also called it a gang issue. But we know that human beings tend to group together. Like, you can call it a gang, or you can call it a group. And if you're youth, and you call it a gang, and all your friends are in gangs, it becomes almost a rite of passage that you're expected to be part of that. And I'm not in any way minimizing the harm that can be caused by people being involved in gangs. But we can also, there are also social policy ways that we and economic policy ways that we can interfere without. And one of them is to provide more opportunities. So if it becomes, you know, not cool to be in a gang, but cool to actually get pull secondary education, get access to post-secondary education, to do recreation programs for young people, to, you know, and I'm not trying to be flippant here, but the reality is, when you provide very few opportunities, then the one opportunity that allows you to feel part of a group is likely to be the one that will gather more young people in particular to it. And so we have, I think we have been part of creating a gang idea, or an idea that there's gang culture. And we need to be part of undoing that as well, in providing other opportunities for young people to feel like they're part of communities, and to be part, not just feel, but actually be part of communities, and be investing in community. So whether that's through sports, through education, through music, through a whole range of ways that we see leadership. And I think we also have to be supporting and promoting those individuals when they get into those leadership positions and lauding them.

Well, I think that's a key point. You have to provide opportunity. Because if you don't, then people will turn to the lowest common denominator opportunity. And isn't that just a microcosm for marginalized people in marginalized communities who often don't have opportunity? And therefore turn to whatever they can to live their life. People aren't going to roll over and die. They're going to continue to live and try to thrive in whatever environment they can. And if their environment is one in which there are limited opportunities, well, what's the best one there? And so the best thing we can do on the macro scale is provide opportunity to people. But the same is true for a micro scale. I think I hear what you're saying, that in both circumstances, there has to be another outlet. Where people will naturally turn to, quote-unquote, bad things, whether it's a gang or bad behavior or whatever we want to call it. It's just obvious that that's going to happen. And the solution to segregate people seems a bit, it doesn't, it doesn't fit the bill. It doesn't seem to be not only just, but also effective or efficient. And it, you know, if we see our society or a prison, either the macro or micro, as a situation in which we're just trying to put people into their individual cells, so you're an individual, you're in your individual track, you're not part of a group. We're ignoring human nature. We are a social species. We are, I think, was Jonathan Haidt who wrote a book called "The Righteous Mind" and said that we're 20% "be" that who we are is who we associate with and who we're around. And that's why putting someone into solitary confinement, for example, is not that far away from essentially killing them. It's not that far away from essentially reducing their humanity to the point that they're barely alive.

And to go back to this, though, I do have a question. And it's just, I obviously am a dilettante. I've done a lot of research before this conversation, but I'm not an expert in any way, shape, or form, which is most of my conversations with people. And that's why I almost thought about calling this the dilettante podcast. But when I think about a prison situation, which I've never seen or been in, and there's someone who's acting out and causing a lot of problems, and they are a danger to themselves, to the staff, and to the other inmates, is there an, is there an honest situation in which, okay, it's time for you to cool off and be on your own for a couple hours? I don't know if that's a couple hours, a couple days, or whatever it is. Is there a place for that procedure in Canadian prisons? Or are you saying that what we call segregation, solitary confinement, is a blanket no?

Well, my personal view is we could get rid of it altogether if we took different approaches. And I'll give you, we've had examples where we've had no segregation units in prisons for periods of time. In the prisons for women, when they were building the regional prisons that exist there now, some, you know, 15, 20 years old, some of them went without segregation units for extended periods of time. When they were refurbishing some of the prisons for men, they went without segregation units for periods of time. And here in Ottawa, at one point, there was a superintendent of one of the youth facilities here who, after thinking about segregation and talking about it, decided that he would try and stop it within his institution. And what he did was he said that anybody who wanted to put a young person in timeout or quiet time, as the euphemism was, had to stand at the door and interact with that young person for as long as they were in the room. They didn't even get a chair. They'd stand there. They went from having weeks, sometimes months, of young people locked away, to having no more than a couple of hours. And so, and the point, the point I'm trying to make is, I know that with, you know, whether it's individuals like Rene or others, that one of the things that I would do, if I was, and when I have been working with individuals who are in crisis, is to try and get someone, I think they trust, or that I know they trust. It depends how well I know the person. And usually that's another prisoner. It's sometimes it'll be a staff member that they have a really positive relationship with. But often that's another person who's in this situation who will be able to engage with them. Too often, that isn't the first approach in a prison setting. And too often, the first approach is what is available, which is a security intervention. And so I think we haven't seen enough of those sorts of interventions in all kinds of places, not just in prisons, but in community as well. And we know, for instance, that in schools that have done away with, you know, quiet rooms and done away with just kicking kids out of classes, it's that kind of a human and person-to-person, child-to-child, with a teacher supporting, the types of interventions that have made a huge difference. And so we don't spend enough time teaching people how to communicate, or especially how to communicate well, how to resolve conflict. And I don't mean to suggest that it's an easy road, but I think that it's a road that we need to explore. And that we actually could get there if we invested in resources.

And, you know, it was a brother of another woman who died in prison once, who, you know, when he was being interviewed about his sister's death, he said, you know, one of the things that was becoming really clear to him was, every time they wanted a security intervention, either to transfer her, or segregate her, or forcibly medicate her, there was no question they had the resources to do it. But when she wanted to get an education, and all she wanted was a bit of money to take a course, there were no resources to be found. And then, so whenever it was something that was positive for her, in his mind, there were no resources. But whenever it was something that allowed them to restrict her more, there was no question that there would be resources. And I think we have to flip that and say, if there's something that could provide a positive intervention, we should be privileged to have those interventions.

And those are interventions that are likely to make the situation in the long term worse. When that cycles us right back to the beginning of our conversation, really. We're talking about the simple solution versus the complex, the easy road versus the hard one. And obviously, when people can, they will take the easy road, or the one we know. And if the one we know is to have a physical intervention and segregate someone, we know it, and therefore it's easy. The intervention, which is to provide an education and give someone another outlet, that's hard. That takes time and it takes communication. And I can't be bothered today to do that. I'd rather not. And especially not for someone that I don't see as a full-fledged human being. And I think that what we're talking about here is asking people to take, it's not, I mean, yeah, the hard road, or a more difficult, more nuanced, more calm path. And I think that we do that with a lot of different things. Government is extremely complicated. We, the tax code, for example, is unconscionably complicated. And there are people who say that tax codes or financial regulations will soon be so complicated that no human being on this planet will be able to comprehend it all. That no single human being will have a grasp of any particular regulation. That you will need an artificially intelligent computer to do. So what happens when we, as a society, and this is kind of a tangent, get to a place where our regulations and our codes and our laws are so complicated that we can't possibly comprehend them? And we are, where we are able to do that with finances and taxes, and yet the simple solution is just fine with something as ground-level as prisons? I mean, this is going to affect our society for years and decades to come. Do we not want positive, good outcomes? Or are we just happy to sweep it under the rug, so to speak? And I think that that's a really, it's a really clear point about, yeah, I think that's kind of the theme of this conversation is the easy versus the hard, the simple versus the complex, and the short-term versus the longer-term course.

And so if we invest now, we may not see a change within the current electoral, certainly not this current electoral cycle, but maybe not even the next. And, you know, people like Evelyn Forjay, who is an economist who's written about guaranteed livable incomes, she did that because she was working in North End in Winnipeg Hospital and seeing that the long-term impact of not addressing these issues and inequality issues at the outset is to have longer-term costs. And so the, you know, we need to be investing. And we need to, I think, as the population, convince our elected officials that actually it is worth investing in this, and that we will wait more than five years to see the results of really good investments, instead of spending more money on the things that are not working. It's interesting, someone said recently, or I read it somewhere, that people actually do take the long term in their own lives. We think about our retirements when we're in, when we're around our 20s, we start saving for our retirement. Sometimes our parents do it for us when we're five years old. And yet we can't think long term in four-year election cycles in the same way, in the aggregate. And actually, we can, because we do it all the time. And it's not that difficult. And that was kind of an eye-opener for me.

Last question, just really quickly. What haven't we talked about that you wish we had in this conversation? What's one aspect of our discussion, or a completely other subject, that you wish we'd approached in this conversation?

Well, there's nothing really. I mean, there's lots of things I would love to continue this conversation for hours, but that would be boring to everybody. But I do think, you know, you know, what, even in the way that I've approached this role, I started out thinking, okay, the long term is, I'd like to see, you know, some of these, you know, a short up social safety net, really investing in public, not no longer training social workers to police people's morality and income, so I have guaranteed livable income, some of those sorts of things for the long term. But in the short term, have focused on some of the things that I think could change things fairly quickly for people. And so the two bills that we've been involved with are the one to allow judges to use their discretion to not impose mandatory minimum sentences. As well, one that we've just introduced, and that I'll be doing my second reading speech on soon, which is Bill S-258, which is to allow records to expire, conviction records of conviction to expire. Because one of the things that happened in the over the past decade is we've seen the more bureaucratic and cumbersome application process for records to be just suspended over people's heads and not to actually disappear. And some people didn't like the term "pardoned" because they felt it was imposed, that somehow you were saying it was okay whatever people had done. And so what we're suggesting is what happens in some other jurisdictions, which is basically after a passage of time with no criminal activity and following people's completion of sentence, that their conviction can expire, and they can actually truthfully, they no longer have a criminal record. And in these days, I mean, the criminal record can impact whether you can get an education, whether you can find a place to live, because increasingly landlords require criminal record checks, and also obviously whether they can get a job. So that's another, those are some short-term things that we're working on as well.

Great. Kim, thank you so much for this conversation. It's been great.

No, thank you very much.

To learn more about Senator Kim Pate, go to the website, whatonearthisgoingon.ca. There you can find all previous episodes and all future ones as well as a way to get in touch with me by email or on social media. Now, your quote of the week is from the French philosopher Michel Foucault. Quote: "Justice must always question itself, just as society can exist only by means of the work it does on itself and on its institutions." Thanks, as always, to our composer, Andrea Wetstein, and special thanks this week to Senator Kim Pate for providing her office at Parliament Hill in which to record. Next week, we're talking with Jeff Louie about the perils and the promise of artificial intelligence. I'll see you then.

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