Lisa Kerr is an associate professor at Queen’s University’s Faculty of Law.
This summer, at the Ontario Court of Appeal sitting in Kingston, I watched as a young Indigenous man, wearing handcuffs and leg irons, was escorted over from one of the area’s many local penitentiaries.
The issue in the appeal was whether the trial judge made a mistake in imposing a seven-year sentence for offences arising from a 15-minute late-night spree. The man stole a car, injured the owner, drove the car dangerously while impaired, crashed into a property, and resisted arrest. The lawyers debated basic sentencing-law principles. Had the trial judge considered the mitigating factors in the case? Did the sentence resemble the punishment imposed in similar cases?
At one point, one of the judges asked this man about his future plans – a compassionate way of guiding a self-represented litigant into saying something helpful to his case. He shared that he had been enrolled in college before his incarceration, in an online course in business management. He described being excited to learn about business ethics, and about possibilities for life beyond his difficult social conditions growing up. It was a hopeful moment for a man still in his 20s, though many of us likely wondered if he would be able to find his way back to complete the course upon his release.
But it went without saying that he would not be able to continue his studies in prison.
With the back-to-school season upon us, students and teachers are anticipating the exciting possibilities for growth and transformation that will come in the academic year ahead. For incarcerated people, however, September is just another month in which the educational opportunities they so desperately need are kept out of reach.
Even though prison staff are expected to facilitate inmate access to education, that policy conflicts with another in Canada’s prisons: the near-total ban on access to the internet. Exceptions to this rule are rare and inadequate.
At one time, distance education was widely available to prisoners through paper-correspondence programs, which they could access and pay for at their own initiative and expense. But paper-based education by mail, like video and CD stores, could not compete with the internet. The few antiquated paper courses that remain cannot be cobbled together into anything resembling an actual educational program for 2024.
Digital technology has revolutionized how we learn. Schools offer more paid courses online than ever before, as part of diploma and degree programs, apprenticeship courses and courses that prepare students for exams in skilled trades. The internet is also awash in free educational and self-help resources.
Prisoners could be using the internet to study Indigenous cultural and language programs, or take courses to develop critical-thinking, reading and writing skills, as well as learn financial literacy, how to prepare a resumé, and mental health resilience. They could listen to podcasts on how to maintain sobriety. With permission, they could attend worship meetings, public lectures and support groups. As distance education moved online and expanded, people in prison could have gained better access to rehabilitative materials.
Instead, they have been arbitrarily blocked from most post-secondary degree programs. Prisons offer high-school courses only, by in-person teachers. Studies have shown that securing a decent job is associated with lower reoffending and return-to-custody rates; that typically requires both digital literacy and training beyond a high-school level.
The 2023-24 budget of the Correctional Service of Canada is $3.05-billion, making it one of the best-resourced correctional systems in the world. In some of our prisons, there are more full-time staff than inmates. Given this extraordinary public investment, we should expect our prisons to facilitate job training for prisoners, rather than prohibiting it.
A lawsuit filed in July led by the Queen’s Prison Law Clinic, the John Howard Society of Canada and an individual prisoner, partnered with pro bono counsel, is now demanding change. The case does not seek any compensation, but asks the court to declare the CSC’s current internet policy unconstitutional. Experts will testify that basic technology can allow inmates to access online material without jeopardizing security. Evidence will show that Canada’s inadequate approach to remote learning in prisons is now an outlier. Several European countries, as well as many parts of the U.S., provide controlled, safe internet access in prison. These systems understand that allowing inmates to stay connected to the world can further their public safety mandate.
The man whose case I saw in Kingston succeeded on his appeal. The court substituted a five-year sentence – which would offer him plenty of time for him to complete a credential that might be his best shot at lasting change in his life. Why would our prison system stand in his way?