Episode 020: Sen. Kim Pate

Sen. Kim Pate is a legal scholar who has written extensively on the criminal justice system and Indigenous peoples. She now pursues justice reform from her position in the Senate.

Transcript

Cameron Graham: My guest today is Senator Kim Pate. She's a legal scholar who has taught at the University of Ottawa and is currently teaching at Dalhousie University. She is an activist in the area of incarceration of women and the incarceration of Indigenous persons. And it was these topics that drew me to want to talk with her. I hope that you enjoy our conversation. Senator Pate, Kim, welcome to the podcast.

Sen. Kim Pate: Thank you very much.

Cameron: I'm delighted that you've been able to set aside the time to talk with me and I'll try to make our use of time efficient for you. I just want to get an overview from you for the listeners what your legal and scholarly career was just leading up to your appointment as a Senator in 2016.

Kim: Yes. Thank you very much. And yes, I'm very pleased to join you from the unceded, unsurrendered territory of the Algonquin Anishinaabe, otherwise known as you've already mentioned as Ottawa. I started doing work in and around prisons while I was still an undergrad student at the University of Victoria. I trained there, I did a BA and then did the Bachelor of Education post degree professional program as they called it then to train as a high school teacher. And then I went on to law school at Dalhousie University. And following law school, I ended up working with the John Howard society in Calgary, then with the John Howard Society of Canada, then for the 25 years before I was appointed, I was with the national office of the Elizabeth Fry Societies, the Canadian Association of Elizabeth Fry Societies. And in around 2006, I started teaching at the University of Ottawa in the law school, a course on defending battered women on trial, as well as the prison law course. And I've also taught at the University of Saskatchewan when I was in the Sallows Chair of Human Rights there for a couple of years. And then also at Dalhousie University, as you mentioned, I just finished a course in issues in criminalization and imprisonment.

Cameron: So your focus has been on the intersection of incarceration and gender. And I'm wondering with that focus, how much of that is woven up with the incarceration of Indigenous persons in Canada? I think most listeners would be really familiar with the issue in the States of the over-incarceration of African Americans. In Canada, I think we have a very clear problem with the over-incarceration of Indigenous persons. And your work has looked at the intersection of those things.

Kim: Yes, and the work actually evolved because I started working with young people, then they aged. I then was working with men. And then I started working more exclusively, when I moved to Elizabeth Fry Society, with women and girls. So as we're sitting having this discussion in our respective venues, women are the fastest growing prison population in this country, particularly Indigenous women followed closely by Black women or African-Canadian women -- and in particular across the board, if they are poor and also have mental health issues. So if they have issues of disability and relative lack of privilege in terms of class, that is the fastest growing prison population. So when we have those intersections, we see that being overwhelmingly the over representation. So when we're talking about women serving two years or more in prison, 40% of those women are Indigenous. When we're talking about men, to compare, about 25 to 27% of men are Indigenous. When we're talking about girls though and young women, the number goes up even higher. So hence, I was talking about the intersection. Now when we add in age, I was in Saskatchewan and two weeks ago for a case involving a young Indigenous woman, and 98% of girls in juvenile detention in Saskatchewan are Indigenous. So way over the top. And the numbers go up as high as 100% sometimes in Manitoba, Saskatchewan, and the Northern Territory.

Cameron: It's quite phenomenal that there's this incredible over-representation of various minorities in the prison system. One of the papers that you wrote back in 2002, called "The risky business of risk assessment," looked at the way that these actuarial models for predicting risky behavior on the part of people in the justice system were really inappropriately derived because they were focused on the adult male population. And when they get applied to people who are in positions of vulnerability, you end up with all kinds of skewed interpretations of the causes of their incarceration and everything else. Could you talk a little bit about the way that our prison system seems to be developed for one population and then what we've learned from that gets transferred without perhaps enough thinking to other populations?

Kim: Yes. Well that paper -- since then, the Correctional Investigator, which is an ombuds body that's at arm's length from Corrections, but operates under Public Safety Canada as well as Corrections, has documented -- they've actually called their report "Risky Business" as well -- it was put out more than a decade later and it underscores this the very same issue. And then in addition, we now have the Supreme Court of Canada in a case called Ewert, involving an Indigenous man who brought a case arguing that the classification system is skewed. So if listeners are looking for more updated information, those are two sources they may also want to look at. And basically, the classification system was developed by, and not to be too simplistic, but white male middle-class men for white male middle-class men. So if you don't fit that standard, and I often use the example with students when I'm starting out, the law applies equally to everybody. That's what we're all taught. That's what we expect. But if you start out in a relatively unequal position, then the law does not actually apply equally to you. And I used to use the example of the Anatole France quote, and I won't get it verbatim. But basically it was from the 1700s in France. And it was, "The law applies equally to everybody, rich and poor. Neither is permitted to steal bread or sleep under bridges." Well, I think that encapsulates that certain people are more likely to be vulnerable or to be so marginalized that they're more likely to be criminalized -- to come to the attention of the state, to then be criminalized and be imprisoned. So if you're talking about Indigenous peoples who have experienced the colonization of being, first, placed on the first prisons they experienced, which were reserves in this country -- so land stolen from them -- then placed on plots of land that they were not permitted to leave without the authorization of the Indian agent ... when we then have children seized from those lands and put into residential schools to breed out the Indigenous component of those individuals; to then have them go back into communities without the culture, without the language; to then have the so-called Sixties Scoop, the state-sanctioned forced removal of next generations of children: many have described it -- Pam Palmater has done some excellent -- horrific but excellent -- descriptions of that pipeline right into the system. So it's a trajectory that for some people is very clear, and for other people, because of their relative privilege, because of the opportunities they have, they're less likely to end up in those situations. So that we know that the majority of people, by the time they reach adulthood have done things for which they could have been criminalized. But as we see from the stats that I mentioned about young Indigenous women, there are certain groups more likely to be criminalized by virtue of them being coming to the attention of the state: if they're on welfare, if they're already in the care of the state, their behavior that in a family situation or particularly a middle-class family situation might be seen as symptomatic of adolescent rebellion or behaviour, is more likely to be characterized as criminal if they're in a group home or in a foster home setting. So we see that trajectory, and it just continues on. In the prison for Indigenous women for instance, we see behavior that would never be seen as warranting criminal charges, or even sometimes institutional charges in a prison, a federal penitentiary, for men. But we have seen women not only accumulate charges and longer sentences, but even be labeled things like a dangerous offender -- a status that then can carry an indeterminate sentence and a lifelong involvement in the system for behavior that would not result in the same situation if it was a man, certainly not if it was a middle-class White man who happened to be in the prison system.

Cameron: Right. There's so many interesting things going on in this analysis that you're providing, because you have the way that we base our interpretation of what's happening to women on our experience with men -- men of a different race, men of a different class -- and then you've got the translation of that into particular risk factors that determine what will be done with them in the system. But you've also got issues in how various classes of people end up in the justice system in the first place. You wrote an article in 2006 called "Advocacy, activism and social change for women in prison." It was in Canadian Women's Studies, and you've got a really powerful quote here, if I take the moment to read it, because it really speaks to me. You suggested, "We need to query the value of enabling the creation of laws and policies that effectively criminalize poverty, disabilities, and the resistance of colonization, and then developing classification, assessment, and correction tools that pretend that the individual members of these very groups of people who are grabbed, sucked, or thrown into the criminal and correctional systems are there because of their planned, voluntary, and criminally intended actions." What speaks to me in that quote is this notion that people end up in situations in our society because of their choices. It's always because of the choices. If you are rich, it's because you made great choices. If you are poor, it's because you made bad choices. And there's almost a willful ignorance or ignoring of the structural factors that funnel people in one direction or another. I think that when you look at who ends up in prison, if you don't look at the fact that the social safety net that might've been there -- the education system, income redistribution, all those sorts of things that we have in the past relied on to provide a little more equal opportunity in Canada -- those things have been systematically dismantled over the past 40 years. So what do you do then? Do you just accept the fact that that has happened and try to treat the symptom? How do you go about addressing those causes?

Kim: Well I often say, for the first maybe it was a third -- I used to say half of my career, but I'm hoping now it's only a third -- I actually did believe that if we reformed the system sufficiently, we could remedy and alleviate these issues. For the last probably 10, 15 years, I've been starting to work more on how do we actually prevent people from ending up in the system? So how do we actually address the substantive inequality that exists, and really insist that our Charter of Rights and Freedoms in this country actually means what in law it says it means? Which is that we actually do not just shore up the social safety net that's been rent with so many tears and holes, and that far more people fall through the net than actually are captured or supported by it. So one of the things we're working on here, and there are a number of other senators interested in it as well, is looking at some of those efforts. What do we do about for instance, the economic inequality? Well, four of us just published an opinion piece last week, talking about that we think we should be looking at guaranteed livable income approaches in Canada. Get rid of the morality, the policing of morality and income that goes with social systems, so that increasing numbers of people don't even qualify for income assistance. Look at the realities of artificial intelligence replacing many of the low wage or minimum wage jobs. Let's look at the impact we know from the experiment that was done in Ontario, as well as the one done in Manitoba in the '70's, the Mincome Project. And look at the impact. We know that in those studies, the standard of living of those who were involved in the initiatives went up. The impact on the community in Manitoba was decreased cost of healthcare. Some suggestion of decreased costs in crime as well in terms of criminalization. And overall increase of standard of living. And the only people who stayed home more when they had the opportunity for a guaranteed income, than stayed home before that, were two groups. Now in the '70's, it was predominantly women staying with their children. Now I'd like to think there'd be more gender parity across the board. It wouldn't just be women choosing to stay home with their children. And then, young men who wanted to get an education who otherwise couldn't afford it, and they had to go out to work, to support themselves and/or their families. Those are two group presumably we want having the opportunity to do both of those things. People to take care of their children and to get an education. And we know that the most highly educated communities also have higher standards of living, have more community support; that there's a difference in everything from empathy for each other to the value of education and learning, and supportive communities. So that's one of the initiatives we're working on. Also working on things like how do we actually take the off-ramps that currently exist to get people out of the criminal system and the penal systems, and use them. Just in the past six months, one of the things the government did was actually start to plug up some. We hadn't even used some of those off-ramps and they started to prevent them from being used under the current corrections legislation and the criminal justice. And yet we had new off-ramps created for the most privileged. The SNC-Lavalin [scandal] brought to everybody's attention deferred prosecution agreements for corporations. How is it that we allow a corporation to avoid criminal responsibility, to say, "I'm sorry, yeah, we did something wrong. Here's how we've corrected it. So we avoid criminal liability. We arguably take responsibility, but we avoid criminal liability and criminalization, and all that goes along with that." Why? And it was kind of a funny moment, if it wasn't so serious, when that was surfacing. Some of the media were asking me about it, asked if I could provide information about SNC-Lavalin. I said, "No, why are you even asking?" They said, "When the deferred prosecution agreements were being introduced into law, you kept asking questions like, 'Why? What's the impetus? Where's this coming from?'" And my response was, "Well, look at what I did before I came here. I was asking because I want to know if a corporation can get this, why can't the average person charged with a criminal offense get a deferred prosecution agreement? We're fighting to allow judges' discretion to not impose mandatory minimum penalties, and here you're arriving at a deferred prosecution agreement, which could provide that." So we're basically looking at all of those areas and at the same time, educating the public about what it means. That when you apply something like a mandatory minimum penalty, it disproportionally impacts those who are already most negatively impacted by the system. So we're doing some work around that. So particularly how they impact, for instance, Indigenous women, and how that is linked to the issues of why so many Indigenous women go missing, are disappeared, are murdered, and the lack of attention historically to that. So linking it also to things like the Truth and Reconciliation calls for action and the Missing and Murdered Indigenous Women Inquiry calls for justice. And really trying to move towards a more comprehensive, not just a social safety net, but social development and economic development for all Canadians, or all people in Canada.

Cameron: What do you see as the potential for making much greater use of Indigenous practices around justice? I know that the whole mechanism that we have of hauling somebody up before a judge in a black robe is so completely foreign to Indigenous people in Canada. And yet our system is highly resistant to even rethinking anything about the way that we go about things.

Kim: Well, I know that there have been a fair number of initiatives to develop restorative practices or Indigenous approaches to justice. Almost every single one, though, is an add-on to the existing system, as opposed to a real alternative. In the sense that if someone participates, they usually first have to take responsibility and be criminalized. Or they have to at least go before a court. If it's a very serious matter, it's less likely that those special circumstance courts like Indigenous courts will be allowed to have jurisdiction over the matter. Very rarely do you see communities having control over what actually happens in their communities. So it's not really a rolling back of, or a non-criminal response. It's an add on. And in fact, our fear is -- and the evidence seems to show pretty substantively, and one of my colleagues here, a new Senator, Senator Kutcher has talked about this in the mental health context -- that the adding of mental health courts actually seems to have expanded the scope of social control, but not necessarily reduced the numbers of people coming into the system. And so if we got all of the research on what's happening in terms of Indigenous courts, or restorative approaches, or healing lodges, they're really expanding the scope of social control in the criminal context, but not necessarily reducing the numbers of people actually in the system. Some would say, some folks within the Indigenous community have said to me, "Well, if that means that people are treated better though, isn't that better." And how an individual may experience the system may be better or worse in certain areas. But the fact is if they're still being criminalized, if they're still having to come in to be identified or labeled as criminal in order to get access to those services. I think that's highly problematic, that if we're talking about really decolonizing versus Indigenizing the system, then we'd be talking about rolling back those processes and saying, if community X, let's say Kitigan Zibi which is up the road from here, an Algonquin Anishinabeg community says, "There are right now," I'll just pick out of the air, "five people who are in custody right now from our community. At minimum, it's a million dollars a year to keep those five people in custody, whether it's youth, adult, men, woman, or in provincial or federal custody. So we would like that million dollars in Kitigan Zibi to not just support those five people, but contribute to the community. But in doing so, we will hold these five people accountable for the behavior that they need to be held accountable for. We will have them contributing to the community and we will invest this million dollars not in the way you tell us we need to, but in the way we see will assist our community to not be harmed further by these five individuals, if that's the case, or to allow them to meet their needs so they're not harming themselves." And if that's what we were talking about, I would be the first one to cheer them on. But that's not what we're doing. We're generally saying, "If you set up this model, if you set up a healing lodge in your community, it looks like it's a mini-institution. It looks nicer than some of the other jails that exist because we allow you to have maybe a teepee and a sweat lodge, and maybe rooms as opposed to cages or cells." But what we're really doing is saying, "We're taking all of you Indigenous people, overlaying, so indigenizing, this part of the criminal justice system." Then saying, "Now you fix it." And if you don't fix it, then we we throw up our hands and say, "Well, we tried that." When in fact we're not actually handing over the resources and saying, "You have a way better idea of what's needed here for people in your community, for these individuals," and not actually allocating the resources that we're now spending to incarcerate to those communities to do something different.

Cameron: Yeah. It's quite a cosmetic kind of a thing, but really these fundamental incompatibilities. One of these incompatibilities I think seems to be right at the core. There seems to be a real need in Canadian society when something has happened that is outside of our expectations of what normal behavior is, that someone must be punished for it. And that desire to punish seems to be at the core of our system. And that seems fundamentally incompatible with things like truth and reconciliation.

Kim: Absolutely. And it's interesting because victims are often used -- or the idea of protecting victims is often use -- as the rationale for that crime and punishment model. And yet in my experience of working with people who have been victimized, there are two main things they usually want. And again, I don't mean to over-generalize, but most people want to know, why me? Why was it me who was picked? Or why was it me who ended up having to endure this? And secondly, how do we prevent it from happening again? And part of that may involve, how do we remedy what happened to me? But in most cases, it's those first two. And the third may or may not even come into it. In my experience when the third comes into it, in terms of how do we remedy, it is usually because the person who's been victimized according to the criminal definition, is also someone who comes often from a similar, if not the same, [background] as the person who's been criminalized. So I can't tell you how many times I've heard people say, "Well, he or she went to jail. And they get fed, they get housed, they get clothed, they get educated. And I'm still out here and I don't have that. And now they get healing lodges too. And I need to heal." And I'm talking about, in particular, people who have experienced some of the most severe victimization, or who have been left behind when someone's been killed. So we're talking about the most serious crimes. One thing is, if we're not actually providing supports in the community at the beginning, for all people, then there are people who are more likely to, when they're victimized, maybe to be victimized as Indigenous women and girls and Indigenous people generally. But it's also that those who are victimized often don't have their needs met. And we know this from the number of women who are in prison who have experienced violence. So the stats are that about 91% of Indigenous women, about 87% of women overall, who are in federal penitentiaries have experienced violence in the past. Many of them never had that dealt with. We know that from MeToo, Unbelievable, or all of these popular exposes of that issue, of particularly misogynist violence. So we know that they generally haven't had those needs met. And if they have, they've tended to be given drugs to anesthetize themselves by the medical profession, pathologize sometimes. Or they've used drugs or alcohol themselves to blunt the pain, to anesthetize themselves from those realities. Which then adds a component of also creating a greater likelihood of being criminalized for the behavior that then goes along with that. So when we unpack it all and we say that applies to people who have been victimized, people who are criminalized, those who end up in prison -- and the trajectory is all along the same plane, that if you can afford to actually get treatment, it's less likely that you'll end up in a situation where you'll be in a more vulnerable situation. So there's that part. And then add to that the overlay of the message we send to people is the measure of how seriously we take behavior, or we consider behavior, or how seriously we consider the lives of those who have been victimized. The measure becomes how much punishment we exact for that. So we actually have victims who will say to us, "I don't want to make a victim impact statement. I don't want to be involved in the parole hearing. But I'm being told that that then makes it look like I don't care about either what happened to me or what happened to my loved one." So we actually have created a system where the criminal system, the only role of victims in our adversarial process is to be a witness. To help the court establish that a law was broken, and what the impact of that breaking of the law was. Not to remedy that person for what's happened to them, but to just be a witness to show that. So we've tried to add onto the system victim impact statements. We've tried to add on them being involved in the parole hearing. And not surprisingly, people have been victimized and then their expectation is that something will be done with what they say. And yet then they're told, "No, what you say actually isn't supposed to impact the sentence or whether someone's released. It's supposed to be based on how that person responds, what the tariff is, or what the expectation of the sentence is." So no wonder that we end up with some people saying, "Well the true measure of whether we take a crime seriously is how long and how punitive that sentence is." When in fact we know it in no way predicts whether in fact that person will ever do something again. In fact, what we know is the longer people stay in the system, the less likely it is they'll be able to integrate ultimately into the community in a way that's safe for them or for us. So we actually promote the exact opposite of what we know to be effective. On the Department of Justice website, there's evidence that general deterrence -- this notion of sentencing principle of general deterrence -- the evidence is negligible at best. In fact, most people know the reason we don't have general deterrence as a sentencing principle for young people is we know it is totally ineffective. Most people don't do things thinking, "If I do this right now, I might get caught. So I don't think I'll do it." In a few exceptions, people will raise things like drunk driving. Well, the reason people don't drink and drive is there's a greater chance of getting caught because there are road checks. It's mandatory you provide a breath sample if you are stopped and asked for one. So people know that and are less likely to do it. And, it's also one of the most litigated areas. Because people who have resources get charged. And it's one of the few areas where if you are charged, you can avoid the mandatory minimum penalty if you can get the crown to agree that you go to treatment. Well guess who can do that? People with money who can pay for treatment. So it's one of the most litigated areas of criminal law because people of money get charged. Behavior is changed through education and the certainty of the penalty, I would argue, not because there's a mandatory minimum penalty. Because the people who can afford to avoid it still avoid it. So that's a very long explanation into saying that all the evidence shows that in fact, the most effective sentences are those that actually look at the specific circumstances of the individual and look at the specific issues that need to be dealt with to both remedy it for them and to remedy it for the people who have been harmed by it. And very, very rarely do we see sentences tailored that way.

Cameron: Is it important then to simply abolish the use of prison sentences as part of sentencing?

Kim: Well, prison sentences were seen as a kinder, gentler approach than killing people, maiming people, or transporting people. So prisons were an experiment, a humane, a more humane experiment to what previous to that was being done. So I think it makes sense that we say, "Okay, that was the experiment then." And much like we're doing with solitary confinement over the last 20, 30 years, the information that's amassed shows that isolating people, which clerics mostly thought, "This is a very nice." It was the Quakers and folks who said, "If we allow a penitentiary, a place of penitence, a place for people to sit and think about the things that they've done wrong, then that's more humane than killing them or sending them to North America or Australia," as they did. Or to cutting off their hands, or those sorts of approaches. So it was seen as a more humane approach. We now know though that as few as a few hours in isolation, and certainly as early as two days into someone being placed in an isolation cell, we can see permanent irreparable damage that includes everything from psychological damage to physiological damage, if people are actually physically harming themselves, but also neurological damage. So knowing that, in most jurisdictions, there are caps being placed on it. Canada's lagging behind. The Senate actually moved amendments to say that if Corrections wanted to put someone in segregation for more than that 48 hours -- the courts have already found you can have permanent damage -- then they have to go to court and have to prove that it's absolutely necessary for the safety of that individual, for others, that the person be kept in isolation. And then the conditions would have to be examined. It's interesting the government rejected that. Even though around the world now we're seeing ... I mean we got rid of a solitary confinement, if you will, cages like that for animals many years ago. I think it's time that we evolve as a society, as communities, to look at better ways to actually address harm and to prevent harms from being done. And certainly, the growing numbers of particularly racialized people, people with mental health issues, poor people, and young people in these institutions I think is causing us to take a second look.

Cameron: In 2010, you wrote a paper with Debbie Kilroy called "Activism around gendered penal practices," and I'm interested in your assessment of what works as far as activism in this area goes. Who are the activists that would stand out to you? And what kinds of activism are effective at creating really important change? And there's so much inertia, so much resistance to this because there's so many people with a vested interest in the system continuing as it is. So what kinds of activism would actually be effective to create this kind of systemic change?

Kim: If I knew right now, I would be spending every minute doing that. And I don't mean to be flippant about it, but actually you mentioned Debbie Kilroy -- and you're pulling out papers I've forgotten even that I participated in or wrote -- so in fact, Debbie Kilroy was just in Nova Scotia with me participating in the class that we were offering. And one of the things I wanted her to talk about and she talked about was last January -- January 2019 -- she was so irritated to find out that a woman who had just died in custody had been put in jail for nonpayment of fines, that she started a GoFundMe page to say, "Let's pay," and they were mostly Indigenous women. "Let's pay all the fines of Indigenous women in Western Australia who are being jailed for nonpayment of fines. It's ludicrous, shouldn't be happening. Donate. If you go out for coffee in the week, probably donate $10, which is probably two coffees a week." Well within a very short order, half a million dollars had been donated. They were getting women out of custody. They were sending the money. And last week, the minister in the government in Western Australia announced they were repealing that law. That's one of the most effective campaigns I've seen ever. And it took the public being able to think about it as something that impacts them directly, and working to change it. In this country, I think the courageous effort and determination of Ashley Smith's family to have exposed what happened to her. Ashley Smith, we're coming up to the 12th anniversary of her death. She died in a segregation cell in the Grand Valley Institution in Kitchener, and she had been jailed for a breach of probation originally. And she was on probation for throwing crab apples at a postal worker who she believed was delivering a social assistance checks late, was purposely delivering them [late]. So not okay, but lots of us have been 15 or have had 15 year olds. We can imagine that righteous rage and the behavior. And most of us can't imagine them not only being jailed for that, but ultimately losing their life as a result of the treatment they received as part of the penalty for that. And she went into jail. And because her mom didn't understand how it happened and her mom insisted that if she didn't understand, she wanted the whole world to understand. She is one of the few family members who have said, who despite the stigma that often attaches to people who've been criminalized and imprisoned, and by extension their families, insisted that the inquest into her death to be public, that it be live-streamed. So the country watched and heard as the evidence came out, that this was a young woman who went in on a breach of probation, whose behavior that many of us could recognize as rebellious adolescent behavior in a prison context led to more and more criminal charges. Then, the response was to take away everything that she valued, including her clothes, including her books, including anything to write with. And by the time she died, the only human contact she had was tying ligatures around her neck and putting her life at risk, and having violent interventions from SWAT-type emergency response teams. Now, most of us can't even imagine getting to the point of desperation for human contact, that that's what we'd would be doing. But those behaviors she had never, ever done in the community. And the exposure of what happened to Ashley really was the impetus in Canada for a really hard look at solitary confinement and segregation, and the impact that has. It led to cases. But it didn't lead to people yet -- I think now the conversation is shifting to that -- of, if the United Nation says 15 days is torture and we say that it's cruel and unusual punishment to have even 14 days, when does it get to that? And why are we contemplating any solitary confinement, any isolation of people? And what was interesting is, general public could get there. People who were in prison could get there. We couldn't get lawyers and judges, and politicians there yet. So in fact, I think the most effective approaches are ones where people, the general public, understands. And then, it's putting the pressure on those who have the levers of power, whether it's economic, if it's corporations, or political, if it's laws. And that we actually put those pressures on. And it's part of the role I see the Senate has, and why a number of us are interested in things like guaranteed livable incomes and these long-term law reform initiatives. Because those who are being elected right now, who are seeking to be elected, are going for what will get them elected. -Our responsibility as senators, we are in the privileged position of being appointed. And we have a responsibility to represent the interests of those whose interests aren't necessarily represented by the elected officials. And to look at the long-term interests for Canada. So I'm here, unless I cark it before or quit for some reason. I'm here for just over another 15 years. That's a long time, and we should be doing everything we can to move us as far as possible in those directions, without the pressure of having to be elected, that we're not trying to appease certain groups. So we should be looking at what's in the long-term best interests of our country. So I don't think the entire country is there yet, but I'm hoping that other people besides individuals like yourselves and other interests will actually say, "Hang on, why are we putting billions and billions and billions of dollars into putting people in jails?" I've yet to see people improve in jail. And I don't mean that there aren't people who make really strong efforts and on an individual basis may come out with more skills than they went in. And there are certainly people working in those institutions who do the best they can. But as one woman said recently before our Senate committee, "It makes good people bad and makes bad people worse." I mean, I wouldn't exactly subscribe to that view, but I do think we know that if those resources were invested in the community, they would benefit far more than the individuals that go into prison. And we could see much more positive results if we used those resources for universal childcare initiatives, guaranteed livable incomes, free post-secondary education, free health care, mental health care, dental care, PharmaCare, [addressing] all of the things we know that make people more substantively unequal.

Cameron: And we're talking about a vast amount of money. I've got a copy here off of your Senate website, of what the Senate refers to as your maiden speech in December of 2016. A lot of gendered language there. You pointed out right off the bat in this speech that the annual cost of incarcerating a woman in federal penitentiary, taking into account all of the costs, was $348,000 each year, for each prisoner. And to think that we could be devoting that money to prevention as opposed to punishment. What does it take to move us in that direction?

Kim: I think more people having more information. I mean, one of the things senators are planning to do is to continue to go into the prisons and start to expose what's happening. When I show the public photographs of segregation, of what's happening in our prisons, which I'm now able to take -- one of the inducements that people used when they were trying to encourage me to allow my name to stand for the Senate when that process was first implemented, one woman said to me, who was serving a life sentence, she said, "You know, they can never kick you out again." And I laughed. Because it is part of the law that all members of parliament, senators, and judges have a right of access to our federal penitentiaries.

Cameron: Interesting.

Kim: So we take photographs, we expose what's happening. And now after Bill C-83, there are a group of senators who want to do regular visits and keep track of the conditions of confinement and the human rights issues. And in particular, violations that are happening. So stay tuned for us getting that information and making sure it gets out to the public on a regular basis. So I appreciate you talking to me today because it's through these sorts of discussions and making more and more people aware of what's happening, that I think we start to change attitudes.

Cameron: Yeah. One of the themes of this podcast is to look at how academic research of various kinds gets translated into policy, into public discourse, into whatever form that research needs to take. It could be an engineer who is able to take some work that they've been doing and translating it into some kind of product or invention or something. In your case, you've taken kind of the hands on approach. Your academic and your legal scholarship, you have taken quite personally a role in taking those insights into action by becoming a senator. So I'm interested in how your academic and legal background positions you as a senator to raise particular issues and to draw attention to them. You've given one example where you can actually go into prisons, a very hands on route. What other opportunities do you have as a senator to draw attention? Are you passively waiting for the government to produce bills that you can then critique from your perspective, or do you have an opportunity to raise issues yourself? How does that work?

Kim: We do have an opportunity to raise issues and to develop legislation as well. It's private members' legislation. So there's less likelihood of it getting through, but there's still the opportunity. So for instance, in the last parliament -- so within the first six months that I was here -- we developed a piece of legislation to allow judges discretion to not impose mandatory minimum penalties. Similarly, there are now four different types of record suspensions or pardons that exist in this country because of changes that have been made to try and remedy past homophobic responses, the changes to the legislation around cannabis, the historical pardon process, and then the record suspension process that came in after. So we now have four different types of approaches. We recommended and actually presented a bill that would allow for convictions to expire. Nobody has to apply, so you don't need the bureaucratic process. You don't have the huge cost of $631 or $651 to apply for a record suspension. And the government said that the main impediment is that we haven't got a streamlined criminal record process across the country. Certain courts and police departments do it different ways. So today actually, I was meeting with some tech people, and I was recently at Simon Fraser University meeting with some big data people -- I have no idea what that means other than that they do -- and said, "This is a big problem. How do we streamline all of this data so we could have a conviction expiry process that wouldn't have the bureaucracy of applications and the costs that are currently associated?" So that's another one we're working on. We're also working on, because Bill C-83 passed without some of the progressive amendments the Senate had made, a whole new piece of legislation around corrections that we are proposing. We also propose that the Minister of Immigration amend the immigration legislation so that anybody who is taken into the care of the state as a child and doesn't have Canadian citizenship, it becomes the responsibility of the respective provincial or territorial child welfare authority to get that. And it can't then be used later to deport someone as we've seen has been happening. And then the final piece is guaranteed livable income. So those are five pieces of legislation we're getting ready to move forward. And part of it will be educating the public. Part of it will be trying to get the law passed. And part of it ultimately will be bringing on as many members of not just the Senate and the members of Parliament, but also the public to call this a success. If we don't achieve it in this government, then at the very least the next government.

Cameron: It's a phenomenal list of bills. I presume you have lots of allies in the Senate to help you work on that?

Kim: Well certainly, there are a number of people who are interested in all of these bills. And there are growing numbers as more and more independent senators have been appointed or who have been active in the community prior to coming here on these sorts of issues. So I'm quite hopeful. And then add to that, of course the analysis we have if we've been involved in academic work. I mean, part of the reason I did postgraduate work in forensic mental health was to be able to deconstruct the pathologizing of those with mental health issues. So that's a whole other area that we ... and you mentioned some of those. And as well, some of the areas where when someone goes into a prison, many are rediagnosed. So if someone comes in with post traumatic stress, that's a state that requires, that puts an obligation on Corrections to actually provide support services. If they rediagnose those individuals as having conduct disorders or personality disorders, that then rediagnoses the person as having the locus of control, as being within that individual. So being able to deconstruct even those approaches has been used on a micro and a macro level. Being able to use our training and our experiences is valuable, I think.

Cameron: Well, your journey from an academic role to a role in the Senate is quite remarkable and quite unique amongst all the people I've talked to on this podcast. I will follow what you're doing with increased interest now, having learned from you what you're doing. I'm aware of the constraints on your time as a Senator. So I want to let you go. Thank you so much, Kim, for being on this podcast. It's been a real education for me.

Kim: Oh, well thank you very much for doing this. What an incredibly valuable experience for me, but also getting this information out to the public. So thank you for all you're doing.

Cameron: Fantastic. Thank you so much.

Links

Senate of Canada webpage for Sen. Kim Pate

Canadian Association of Elizabeth Fry Societies

Credits

Host: Cameron Graham
Producer: Bertland Imai
Photos: Senate of Canada, The Tyee
Music: Musicbed
Recorded: October 8, 2019
Location: Toronto and Ottawa