Illustration by Talaj

A picture may not be worth a thousand words anymore. Generative AI art tools like DALL-E, Midjourney and Stable Diffusion, which rely on artists’ existing work to generate images through textual prompts, became available to the public last year. Since then, conversations about how Artificial Intelligence (AI) will render creative jobs obsolete have gripped many North American writers (myself included).

I used to agonize over securing a well-paying, non- precarious job in a creative industry. Now, I must compete for jobs with professionals from non-art backgrounds, like coders, software developers and engineers, who may not have knowledge of ethics and art. Despite what they may think, though, what they’re creating with generative AI is far from original.

All existing generative AI art platforms are deep neural networks, a learning technology modelled loosely after the human brain which can recognize patterns. Engineers develop these software to imitate existing artwork that selects and scrapes large datasets of images, codes, text and music from the internet. The next stage involves feeding the software this ‘training data’ through neural networks. During this stage, the algorithms identify and extract specific features, including shapes and colours. Finally, once trained, the generators are ready to imitate art, sometimes even in the style of specific artists. In short, engineers and software developers train these generators on creatives’ artwork found online, often without their consent or knowledge.

I’m not against using AI tools. I edit my writing through an AI-based word editor, Grammarly, and use Adobe Lightroom to organize my photography. Recently, these companies introduced generative AI elements: GrammarlyGO will allow users to prompt Grammarly’s AI assistant to draft entire documents with a personalized voice, tone and clarity, and Denoise aims to reduce photographic noise and enhance details. And I will likely try these tools to assess their creative might.

Nevertheless, I feel critical of the AI arms race helmed by tech leaders who are hell-bent on enhancing creative arts but forget that these AI generators can erode trust in photography, the medium that sanctified truth-telling. Creating AI-generated images may seem entertaining, but plagiarizing artists’ work without consent or giving them due compensation is the furthest thing from art or creativity.

Chantal Rodier, STEAM projects coordinator and artist- in-residence at the University of Ottawa, says that while AI has the potential to inspire artists, giving it too much credit is dangerous.“[AI] can coherently present data, but it’s not reflective or creative. It is statistically based. It can’t distinguish between mis/disinformation. So what it presents can be garbage,” she says.

Historically, art has been the epitome of human originality, creativity, expression and refuge. While some proponents of AI art tools try their hardest to pit neural networks against the human brain, these models only serve as our second best. They interpret data that was fed to them by humans to mimic humanistic art. For some, incorporating AI in their work or art can be an emotionally fulfilling experience. But idolizing algorithms just to satisfy our techno-fetishist itch is unwise, and the AI art-generating process is riddled with complex ethical issues.

First, the pro-generative-AI crowd doesn’t necessarily regard the datasets on which software like Stable Diffusion, Midjourney and DALL-E were trained as bootlegging. Many say that the images are simply content scraped from the internet and amalgamated, and since there is no sole owner, there’s no infringement. The proponents of AI art tools often argue in favour of training these software on copyrighted data. In the U.S., this is covered by the fair use doctrine, which upholds the use of copyright-protected work to promote freedom of expression. While generative AI art users and developers often make this claim for fair use, the argument amounts to professional gaslighting. Canada’s Copyright Act is a bit more strict, but without any responsible surveillance over AI, it doesn’t functionally stop people from using others’ work.

The term fair use is “dubious,” said Naimul Khan, a professor at Toronto Metropolitan University’s engineering department. “The fair use [doctrine] allows developers to use data for personal and non-profit reasons. But tech companies are making for-profit software off of artists’ intellectual property and discrediting them simultaneously,” he says.

“Intellectual property does not cease to exist just because it is alongside 100 million other pieces,” says Blair Attard-Frost, an AI ethics and governance researcher and PhD candidate in the Faculty of Information at the University of Toronto. “I find the argument that AI models are not taking people’s intellectual property hard to take seriously when you can go into the data sets and see it is copyrighted material,” they say. Worse, Attard-Frost says, in North America there are no governance or regulatory bodies preventing that scale of potential intellectual property theft from happening. They say we need design requirements specifying how to build these applications, how to ensure data is being ethically sourced and attributed, and that no unauthorized data is being swept up in training data grabs.

Second, many may use generative AI tools for seemingly harmless reasons like satire and fun. But a report by the U.S-based geopolitical risk analyst Eurasia Group notes that as AI technology advances, the possibilities for those using this technology to spread misinformation increase with equal measure.

Moreover, not everyone is falling head over heels for generative AI technologies. Maybe it’s because they realize that systems like Stable Diffusion and NightCafe are complete failures in the racial and gender representation arena. I purposely prompted the two models with an unsophisticated prompt like “Arab belly dancer.” All the outputs I received were pictures of either white women dressed as dancers or disfigured, scary faces with hyper-sexualized bodies. Attard-Frost had a similar experience. They prompted DALL-E for non-binary and trans outputs only to be disappointed. They say that the system produced “freakish” looking renders as if the tool did not know what to make of trans or non-binary representation.

AI systems appear to be reinforcing normative cultural dogmas by othering anyone who is not a cisgender white man. In the past, Attard-Frost says, tech companies didn’t have enough representation. But now, with more knowledge around bias in data sets, there’s no longer any excuse. Tech companies are well aware of these issues. Mistakes happen; however, if software developers don’t take measures to correct them and they keep transpiring, then it’s negligence, they say.

But then again, this kind of ignorance is to be expected when tech developers fire their “responsible AI” researchers, whose job is to advise on ethical oversight, only to listen to the pioneers of AI. In 2020, Timnit Gebru, one of the lead researchers on Google’s ethical AI team, was let go after releasing a paper that explored racial and gender biases and environmental risks that AI poses. However, when Geoffery Hinton, the so-called “Godfather of AI,” decided at 75 that it was okay to get cautious about these technologies, he quit Google. It’s a good reminder that in 2015, when another researcher asked Hinton about furthering AI technologies that could be abused for political gains, he said, “I could give you the usual arguments, but the truth is that the prospect of discovery is too sweet.” His answer makes me doubt his apparent newfound ethical realization.

Khan says there’s no easy solution, especially not a technical one, to AI-related ethical issues. But making ethics a core part of engineering education would be a start. “It has to be a collaborative effort between software developers, artists, engineers, and regulatory bodies,” he says. Khan thinks this would usher in a generation of engineers who would be more aware of how their codes and algorithms impact non-STEM professions. However, he notes that there are two barriers to this. The first is that the tech developers who hire engineers work for for-profit companies and will chase opportunities to make money. The second is related to the ethics knowledge gap: he says it usually doesn’t occur to engineers that their data might be taken from someone unfairly. “But we can teach them better,” he says.

While I hold engineers and tech developers against my critical pitchfork, I show no mercy to corporate media for neglecting marginalized voices around the conversation about AI ethics either. The news media hypes up AI and under-reports the power dynamics behind it. This is problematic because it only reflects business and government interests. As a journalist, I expect reporters to do better. Media must diversify their sources by including voices of marginalized tech experts, who recently penned an open letter about the lack of inclusivity.

Instead of hailing the “Godfather of AI” for resigning so he could speak freely about AI risks, journalists should be questioning why he didn’t speak sooner or show solidarity with his marginalized counterparts. I’m not minimizing Hinton’s concerns. But women and non-binary researchers from social sciences and STEM backgrounds who are critical of AI technologies should be equally centred.

By giving hegemonic voices the centre stage in journalism, using anthropomorphized language like “artificial intelligence” instead of algorithms or machine-learning technologies and by glorifying AI’s capabilities, we are priming people to adapt to these tools. It ought to be the opposite. We must adapt and regulate the tools to meet human needs.

Photo by Eagleclaw Bunnie Thom

At Wascana Park in Regina sits a group of protesters, their teepees erected around them. They are waiting. Camped out just across from the Saskatchewan Legislature, the group wants justice after the deaths of Tina Fontaine and Colten Boushie, two Indigenous youth whose accused killers were acquitted of murder charges. The camp set up in February, and in July met with five cabinet ministers to discuss actions the government can take to improve Saskatchewan’s larger issues of systemic racism. But with no changes in sight, they remain, six months on.

“Help”: An inmate at the Whitehorse Correctional Centre sends a message to the outside world on July 17, 2012. Photo by Mike Thomas/Yukon News.

In the winter of 2011 in the small town of Watson Lake, a popular tourist destination near the B.C. border known as the gateway to the Yukon, an arrest warrant was issued for a 27-year-old Tahltan man. He had previous brushes with the law, mainly assault charges. This time, the man was wanted on eight criminal charges, including forcible confinement and assault with a weapon, related to the attack of a 50-year-old woman by knifepoint. It was alleged that he had punched her in the side of the head, dragged her by her hair up several stairs, and forced her inside an apartment. There, he continued to hit her, holding a pocket knife to her throat and threatening that he would kill her and her family.

On December 29, the man turned himself into the RCMP. He entered custody at the Whitehorse Correctional Centre (WCC), the only jail in the territory, located in the capital city about five hours from Watson Lake, the following day.

The name Michael Nehass rings a bell to few across Canada. But in the Yukon, he is a household name. News articles over the years have detailed his numerous charges for violent offences, bizarre outbursts in court ranting about conspiracy theories, and his mistreatment in the justice system. His mugshot often appears in local media: a striking and intimidating figure with a smirk and dark eyes, a distinguishing scar over his left eyebrow and two teardrop tattoos inked near the outer corner of his left eye. Today, the 33-year-old has visibly aged: He’s lanky with shaggy hair, his years in criminal institutions clearly having taken their toll.

Michael Nehass.

Yukon’s most infamous criminal case highlights the most pressing issues in Canada’s justice system. Yukon Minister of Justice Tracy-Anne McPhee has acknowledged that many of those incarcerated in the territory, like Nehass, struggle with mental health issues. Human rights advocates and the Office of the Correctional Investigator have also criticized the use of solitary confinement or segregation for inmates with mental health issues; the Yukon has yet to have an independent review of its segregation practices. Research has shown a high rate of offenders in the territory, too, have Fetal Alcohol Spectrum Disorders (FASD); preliminary findings from a study released last November showed that 17.5 percent of 80 participating adult offenders were confirmed to have prenatal alcohol exposure. Meanwhile, prisons across Canada have been dubbed by some as the “new residential schools” due to the increasing overrepresentation of Indigenous people. In the Yukon, Indigenous people accounted for 70 percent of adults in custody but only 20 percent of the population in the territory. These issues have been deemed as crises by the federal government. Yet, institutions have continued to work against Nehass, resulting in a six-year battle for justice.

As Nehass languished in prison, activists have begun asking questions: Why has the Yukon justice system failed some of its inmates so badly? More than half a decade since Nehass’s imprisonment, the questions remain unanswered.

***

Michael Nehass was born January 14, 1984, in Teslin, Yukon, a small village home to the Teslin Inland Tlingit, a self-governing First Nation. Nehass lost his mother at the age of three when she died in a car crash. Over the years he had multiple caregivers and placements. He also lived on the streets of Whitehorse as a teen. His father, Russell, says he is also an intergenerational survivor of the residential school system.

Growing up, Nehass endured physical, mental, and sexual abuse, and witnessed drug and alcohol misuse. He began drinking as a preteen and using drugs in his early teens. Psychologists say Nehass was self-medicating as a way to mentally escape his abusive environment. Prominent forensic psychiatrist Dr. Shabreham Lohrasbe notes that by the age of 15, Nehass was diagnosed with multiple mental disorders—not unusual for adults who later develop major psychiatric disorders. During his younger years, Nehass was diagnosed with FASD, a group of conditions that can include physical, mental, behavioural, and learning effects in individuals whose mothers drank alcohol while pregnant; Attention Deficit/Hyperactivity Disorder, a neurodevelopmental disorder characterized by inattention, hyperactivity, and impulsivity; Post-Traumatic Stress Disorder, an anxiety disorder that can develop after being exposed to a traumatic event; and attachment disorder, sometimes seen in children with a history of abandonment, neglect, or abuse who are impaired in their ability to develop healthy emotional attachments. Nehass also made several suicide attempts; his first was at age 12.

Since 14, Nehass has spent most of his life in and out of various correctional institutions. He has accrued a lengthy criminal record including multiple convictions for breaking and entering, assaults, assaults with a weapon, and uttering threats. This included a 33-month sentence at a B.C. prison in 2003 for aggravated assault. While high on cocaine and heroin, he and another man tortured a cocaine dealer, Frederick “Mad Dog” Martin, in Whitehorse over unpaid drug debts. They slashed his face, cut off one of his fingers with a meat cleaver, stubbed out a cigarette on his shoulder, and beat him with a hammer and a baseball bat. At his sentencing, Yukon Judge John Fulkner noted, “Mr. Nehass is a seriously disturbed youth in desperate need of treatment.”

As Nehass got older, he continued to act out. In October 2009, Nehass assaulted a peace officer and was sentenced the following June to three years at the WCC. Nehass and his three cellmates became drunk on smuggled alcohol. When a female guard checked on them, Nehass reached out and briefly touched her. Later they flooded their cell and Nehass and his cellmate attacked two responding prison guards. Nehass shoved one of the officers, at one point jumping on him and choking him. He punched another guard in the face, breaking his nose and causing a bone to poke through the skin, which required surgery.

It was clear that the WCC had difficulty managing Nehass. According to the Whitehorse Star, he broke the telephone off the wall of the segregation unit using a plastic chair and smashed several glass panes in June 2013. While correctional officers and jail staff were deciding how to respond, Nehass broke into a utility room. When officers threw a flash-bang grenade into the room to stun Nehass, he climbed into the ceiling saying he was scared. In July, he also spat in the face of another correctional officer when he was refused access to personal photos. Nehass was charged with uttering threats, causing about $30,000 in damages to the jail, assaulting a correctional officer, and attempting to escape the facility.

***

Much of Nehass’s behaviour has been linked to significant concerns with his mental health. During court appearances he would often have outbursts ranting about mind control, conspiracies involving the Yukon government, the Illuminati, and the Bilderberg group, and claims that he endured forced sterilization at the WCC. As of 2016, after five years in custody, he had fired four lawyers and claimed that they, along with judges and the Yukon government, were involved in a conspiracy where they were being controlled by microchips.

But the stipulations of his incarceration only exacerbated Nehass’s mental health challenges. Many of the 2,000-plus days he spent in remand at the WCC were in the facility’s segregation unit for disciplinary reasons or because jail staff were unable to manage him in general population. Nehass’s Toronto-based defence lawyer Anik Morrow says he spent 22 to 23 hours a day inside a nine-by-11-foot cell. When let out of his cell to shower, he was handcuffed and kept in belly chains.

Nehass was held in one of seven identical cells in the Whitehorse segregation unit. They’re similar to those in the general population, but the toilet and sink are stainless steel, not porcelain, and there are no ligature points. Outside of the cells, there is a shower and main area with a plastic bin filled with paperback books. In the corner, there is a small cement “airing court”—the only place inmates like Nehass can get fresh air through a window exposed to the elements.

In most jurisdictions, including the Yukon, prisoners can end up in segregation for administrative or disciplinary reasons. Howard Sapers, Canada’s former correctional investigator and the current independent advisor on corrections reform for Ontario, says many problems occur in administrative cases because systems often rely on segregation to manage medical issues, including mental health, when there is not proper infrastructure. “I have found all too often that people who do have intellectual disabilities or behavioural disorders or mental illness end up in segregation,” Sapers says. “It’s not a healthy, therapeutic, or even safe environment, particularly for people suffering from mental illness.” In jails across Canada, he adds, this is where 50 percent of suicides take place.

Nehass spent 22 to 23 hours a day inside a nine-by-11-foot cell. When let out of his cell to shower, he was handcuffed and kept in belly chains

The United Nations Standard Minimum Rules for the Treatment of Prisoners, more commonly known as the Nelson Mandela Rules, also prohibits indefinite and prolonged solitary confinement, defined as more than 15 consecutive days. The rules also dictate that solitary confinement should only be used in exceptional cases as a last resort. It further prohibits the practice for prisoners with mental or physical disabilities when confinement would exacerbate these conditions.

The WCC asserts that it doesn’t use solitary confinement like other jurisdictions, instead preferring the terms “segregation” and “separate confinement.” (Experts define solitary confinement as any period when prisoners are kept in cells alone for up to 22 hours with little social interaction.) According to statistics from the Yukon Department of Justice, 70 people were separately confined at the WCC in 120 incidents in 2016 alone. This accounted for 1.6 percent of bed days, or 526 out of 32,155.

But in 2014, there was an inmate who spent over 81 days straight in segregation.

All the while, Nehass was not receiving adequate mental health services, despite a wealth of psychiatric reports and clearly disordered behaviour at the jail and in court. A transfer to a mental health facility was considered as early as December 2013, but it was never acted on.

***

In January 2014, Nehass was forced to appear before a judge naked. Three guards in riot gear held him naked and shackled to the floor of his cell in the segregation unit for a court appearance via video. During the case management conference, Justice Leigh Gower waited 15 minutes before having Nehass removed. The judge later issued an apology for not acting faster.

After his appearance, Justice Gower ordered a psychiatric assessment to determine Nehass’s fitness to stand trial on the June and August 2013 charges of assault and damage to the WCC. Forensic psychiatrist Dr. Lohrasbe prepared two assessments. Lohrasbe found that the most likely primary diagnosis for Nehass was Bipolar I Disorder. He said that Nehass’s psychosis “manifest[s] through paranoid and grandiose delusions” and that he could not meaningfully participate in the legal process. In May 2014, Judge Michael Cozens ultimately ruled that Nehass was unfit, finding “his delusional thinking and his tendency to be drawn back into this thinking would be a threat to his rational participation in the criminal proceedings.”

But in a surprise decision, the independent Yukon Review Board panel, based upon the same evidence, found the opposite. Fitness under the law is complicated and depends on a three-part test of whether the accused understands the nature of proceedings, the possible consequences, and whether they can communicate with counsel. While Nehass was clearly struggling with mental health issues, he is also highly intelligent and could understand and participate in the court process, the board found.

The Review Board sent the matter back to the territorial court and Judge Cozen’s ruling still stood. But in November 2014, Nehass, who was self-represented, pled guilty to the 2013 charges. Four months later, he was sentenced to 21 months’ imprisonment, which he had already served. “To say that the Whitehorse Correctional Centre had difficulties managing this offender would be a gross understatement,” Judge Donald Luther remarked during the hearing.

Following a two-week trial in May 2015, a 12-member jury found Nehass guilty of all of the 2011 charges save for a charge of uttering threats.

At that point Nehass had already spent more time in jail than any sentence he would have received. Nevertheless, Crown prosecutor Terri Kaur said she intended to seek a longterm or dangerous offender designation for sentencing. Nehass faced an indeterminate sentence of incarceration or a long-term supervision order.

***

With continued concerns about Nehass’s mental health, Justice Scott Brooker ordered a psychiatric assessment in late 2016 to determine his ability to participate in the dangerous offender hearing. Through court order, Nehass was transferred to the Ontario Shores Centre for Mental Health Sciences in Whitby for assessment and treatment. (There is no forensic psychiatric centre in the Yukon due in large part to limited resources in the territory and the relatively small population. Clinicians do assist inmates at the WCC but for those that require a greater level of care they may be transferred to mental health facilities in the provinces.)

At the facility, Nehass was assessed by two doctors, Dr. Chantal Wong and Dr. Derek Pallandi, who submitted reports about his mental health. “It is likely that Mr. Nehass has been either on the cusp or frankly unfit for a lengthy period of time prior to the present evaluation,” Dr. Pallandi found. Pallandi also diagnosed Nehass with Schizoaffective Disorder.

This left Justice Brooker in a difficult position. There is nothing in the Criminal Code that allows for an offender to be found unfit after they have already been convicted. So, at the fitness hearing, Brooker relied on common law from the 1800s to declare that Nehass was unfit. In R. v. Dyson (1831), the English court stated, among other things, that if after trial a man “becomes of non-sane memory, he shall not receive judgment.” The Ontario Court of Appeal also stated in 1910 that “no person can be rightly tried, sentenced, or executed while insane.” Brooker said to proceed with the dangerous offender hearing “would be fundamentally unfair and would offend the dignity of the judicial process.” It was the first time in Canadian history that a person was found unfit after standing trial. Under the Criminal Code, when a person has been found unfit they are usually required to undergo treatment until they are well enough to face trial. Doctors testified that Nehass could become fit after 60 days of treatment, including the use of antipsychotic medication. Brooker, however, declared a mistrial in the case.

Despite the lengthy case and its many problems, the Crown opted to retry the charges, setting the case back at square one. Defence lawyer Anik Morrow, who is based out of Toronto, said she intended to file a stay of proceedings in the case due to delays and charter rights infringements. Nehass, meanwhile, remained at Ontario Shores receiving treatment, including medication. Justice Brooker noted that his health appeared to have improved. During court appearances Nehass was visibly healthier, engaging with his lawyer and the judge though remaining mostly silent.

With further court proceedings looming, Nehass was freed from the Yukon justice system on September 8, 2017, when Crown prosecutor Eric Marcoux filed a stay of proceedings at a hearing for the defence’s judicial stay application. Marcoux told the court the Crown stay was based on a review of the public interest and safety, finding that Nehass no longer posed a risk. But Morrow seemed less than pleased with the last-minute decision after preparing for the judicial stay application for months. She didn’t mince words when she called the stay a “manoeuvre” by the Crown that effectively put a gag order on the issues of the case.

“Mr. Nehass is cut free from what we would call the umbilical cord of the justice system, but he is unceremoniously dumped on the sidewalk in Ontario,” she said. Through a variation of the court order that sent Nehass to Ontario, he was transferred to a civil mental health facility in Kamloops, B.C., to continue treatment outside of the criminal system.

***

Over the years it seemed as though Nehass would waste away at the WCC indefinitely. No one has taken responsibility for the man who grappled with deteriorating mental health and slipped through the cracks of the system. The Crown, courts, review board, jail staff, and government all had a role to play in the case.

Last September, Yukon Supreme Court Justice Ron Veale issued a memorandum in the case—a rare document to come from a judge—to “highlight the events that took place and to bring them to the attention of the public.” He called the case a “sad state of affairs for the Yukon.”

But some recent changes have improved WCC policy when it comes to segregation. A limit of 15 consecutive days has been set to align with best practices. And the amount of time inmates are allowed out of their cells has increased to two hours, up from one hour, daily. The territory is also one of the few jurisdictions in Canada that has an independent adjudication process when it comes to segregation. Plus, there is oversight from the Investigations and Standards Office.

A door leading to segregation at the Whitehorse Correctional Centre. This photo was captured during a media tour when the new facility opened in 2012. Photo by Mike Thomas/Yukon News.

Yukon Minister of Justice Tracy-Anne McPhee has also acknowledged the potential harms of segregation in the legislature. “I think the research is clear that separate confinement should be used in the rarest of cases,” she says. On the other hand, she says she has “no concerns whatsoever” with how it is used at the WCC. “I have full confidence that the segregation unit cells are safe places and that they were used on a minimum basis,” the minister says. McPhee also announced her intention to order an inspection of the WCC under a “never-before-used” section of the Yukon Corrections Act. It will focus on how the facility deals with inmates with mental illness, including a review of the issues in Nehass’s case. Last November, the government appointed David Loukidelis, Queen’s Counsel, to inspect the matters at the WCC.

Not everyone is satisfied that this is adequate—and they say that problems are already clear. The justice system needs to calibrate its response and not criminalize people with mental illness, Howard Sapers says, including earlier assessments, offramps, and not blocking treatment. He notes that segregation is part of a complex correctional environment and is a symptom of other problems in the system.

The Council of Yukon First Nations and Kwanlin Dün First Nation have also spoken out about the need for changes in the Yukon Justice system. They have pointed out the need for better cultural and reintegration programming as well as a formal system for Gladue reports, outlining an Indigenous offender’s personal history with colonial oppression.

But the Yukon Party, which was in power between 2002 and 2016 for much of Nehass’s time spent in jail, has been deafeningly silent on the issue. “The Official Opposition supports a justice system that protects the rights of inmates while ensuring the safety of our community as a whole,” wrote Yukon Party justice critic Brad Cathers in a statement. “We have confidence in the dedicated staff at the Department of Justice, including staff at the Whitehorse Correctional Centre.”

***

While Nehass was seemingly free from the criminal justice system, he was arrested on a peace bond application by the Crown in Lower Post, B.C., on October 20, 2017. The Crown is seeking that he is placed on 22 bail conditions despite not facing any criminal charges, based on an informant’s statement that there is fear Nehass will commit a serious personal injury offence.

Nehass was released following a bail hearing on November 3. Anik Morrow, who is currently assisting Nehass pro bono, said she was told the peace bond hearing won’t be for another year due to limited resources in the small northern town.

Many who hold tough-on-crime attitudes don’t understand why people are so interested in and outraged by the case. They feel that Nehass is a violent, dangerous offender who should be locked up and have the key thrown away. But what they don’t understand is that incarceration is not rehabilitative and mistreating offenders doesn’t assist in public safety. While offender’s rights may be limited in terms of movement, they still have human rights protected under the law.

Sapers puts it best in the preface for the Independent Review of Ontario Corrections, released in March 2017. While victims’ rights are important, he writes, it’s also important to concern ourselves with offenders: “After nearly 40 years of working in the system I have come to realize there is often only a thin and blurry line between victim and offender…. Meeting the needs of offenders often amounts to meeting the needs of victims,” he writes. “‘Offender bashing’ conditions of confinement does nothing to assist victims of crime or make our communities safer.”

Photo by The Canadian Press/Michelle Siu

After decades of self-advocacy by Indigenous people, parts of Canada’s painful colonial legacy, such as residential schools, have finally been publicly acknowledged by the government. But the same government has yet to apologize for the Sixties Scoop, an era where thousands of Indigenous children were “scooped” from their communities to be fostered and adopted by white families. Since 2009, Ontario Scoop survivors have been battling the federal government to acknowledge the hardships they endured, and the government resisted. In February, survivors in the province were finally promised financial compensation. But other provinces across Canada continue to demand justice. Here’s a look at Ontario Scoop survivors’ arduous path toward reparation.

1965–1984

About 20,000 children, mostly from Ontario, are taken from their homes and placed with white families. They are given new names and stripped of their languages and cultural practices—a psychologically traumatic event for many survivors.

February 2009

Ontario survivors launch a class-action lawsuit against Ottawa, resting on whether it was the Canadian government’s inherent responsibility to ensure these children were not deprived of their culture.

January 25, 2012

The federal government wins an appeal against conditional certification for the class-action lawsuit in divisional court. The ruling forces lead plaintiffs Marcia Brown Martel and Robert Commanda to pay $25,000 in costs.

July 16, 2013

Despite that setback, the case is approved as a class-action lawsuit.

December 3, 2014

The Court dismisses Ottawa’s appeal to scrap the lawsuit without a hearing.

August 23, 2016

Survivors are finally heard in front of a Superior Court judge.

November 2016

Ottawa maintains that “while things might be done differently now, the government argues, no legal reason exists to apply modern standards to an approach taken decades ago.”

December 1, 2016

A lawyer for the government says the feds had no legal duty to prevent children from reserves from losing connection to their Indigenous cultures at the time. Another lawyer adds that even if the government was obligated to ensure the children remained connected to their cultures, Indigenous identity is too abstract to mandate this.

February 1, 2017

The federal government says it wants to settle the case out of court. The request is denied.

February 14, 2017

Superior Court Justice Edward Belobaba rules in favour of the Ontario survivors. He rules that the Canadian government “had a common law duty of care” to ensure children taken from the reserve maintained their Indigenous identities.

March 2017

A new class action lawsuit begins for survivors afflicted by the Sixties Scoop in other regions across Canada.

How did the legal system come about?

The civil court has always been the elected council, falling under the Indian Act. But the people said: well what about Akwesasne laws? We have 33 laws on the books that include the needs of the community. The community said they want a court law to fall back on but more particular to what our practices are here, so the Council decided to use Mohawk values along with Canadian ideals in order to create the laws.

What makes it different than in the past?

It was ratified by the community itself. It is not under any Canadian statute. The people appointed to the court, the justices especially, aren’t through any statute or law of the Canadian government, making it very unique. The Council used their customary rules and created the court so that it meets the needs of the community.

What kinds of things does the court deal with? 

Often traffic law or peace bonds: we’re calling them skén:nen orders (skén:nen means peace). It also deals with tobacco regulations, sanitation, property, and wildlife conservation laws. Criminal matters are still settled in federal or provincial courts.

Do you have any stories from court you can share that illustrate the council’s way of handling violations?

One person was coming in for a traffic violation because he was driving without a licence. Instead of giving him a fine, the court worked with him and ordered him to get his driver’s licence, which is a solution I don’t think anyone else can say they would give. But here, you get your licence and if everything’s well then that violation will be lifted and things are put back in balance with the community, because then you have somebody who can legally drive and follow the rules of the road.

How were disputes handled beforehand?

Well it stems back from how we used to resolve disputes before. You would make sure there was a balance in the community. If somebody did something wrong, you ask: what would it take to rectify the situation? In Canadian law, you have your list of offences and your list of penalties. There’s hardly any room to maneuver, to say: you know, we need to send this person to rehabilitation. For example, if you’re caught shoplifting you pay a fine, but here if you’re caught shoplifting, we ask: what’s behind it? Is it an addiction problem? Is it you need food for your family? The court can inspect these things and see what we can do to make this person better.

How did these types of resolutions work traditionally?

In the community we always had a way of resolving disputes. You didn’t need a judge to tell you how to fix things. In our community, you would talk to the neighbours and see what they can do to resolve it. If they have to come to court, then how can we resolve it for the community? It all follows restorative justice practices, and I think that’s a better practice than somebody just getting a fine and you’re on your merry way until you get caught again.

What does this mean for the community?

Well they’ve always wanted it. We wanted to be able to use our people we want to be able to use our practices. We want to resolve our disputes internally and and be able to work with the families and with the offender to resolve our issues rather than it go outside.

What are your hopes for the outcomes of this new legal system?

We hope things are different because we want to be able to incorporate that sense of security in the community. Meaning that when people go to court, their issues will be addressed. I’ll give you an example: Imagine a person who might have written graffiti on the wall at a school—he would be given a $50 fine. But here, the Justice can say, “I know you’re a good lacrosse player, why don’t you teach the kids that go to that school lacrosse?” So that person will start building a relationship with the children and when he walks to the school to teach them he will see the graffiti and realize what they are seeing every day. So hopefully there’s some responsibility and the person will realize they did something wrong to those children. There are about 12,000 people in the community so we know the families here pretty well. If someone is trying to say something like, “My parents don’t care,” then the Justice will say, “I know your parents and they do care.” We’re small enough so that we know everyone and their situation and that will only make the system better.

That was on July 21, 2011. And the irony was likely lost on De Young and his executioners that, only days before this execution was filmed in the interest of scrutinizing lethal injections, Canada was entering its thirty-fifth year without the death penalty.

On July 14, 1976, the House of Commons voted to strike capital punishment from the Canadian Criminal Code. The road to abolition had been a long one. The first time an MP had introduced an anti-capital punishment bill was 1914, and several more such bills would be shot down over the following decades. After 120 years, and 710 executions, Canada’s capital punishment laws were pretty well-ingrained into judicial society.

It wasn’t until 1956 that Parliament even considered removing the death penalty as a punishment for youth offenders. But by the end of that decade, politicians and the public alike had begun to question the humanity of capital punishment and its effectiveness as a deterrent. Anti-death penalty protesters had started picketing executions, serving as foils to the rabid crowds who had once gleefully swarmed public hangings.

As resistance to capital punishment grew, the death penalty was removed from several crimes, including rape and some murder charges. By 1963, it had become de facto policy for the federal government to commute death sentences and, in 1967, a moratorium was placed on capital punishment for all crimes except the murder of on-duty police officers and prison guards. Nine years later, total abolition was made official. The vote on the hotly contested bill, which had prompted Prime Minister Pierre Trudeau himself to take the floor and make a plea for abolition, transcended partisan lines, and split Canada’s MPs 131 to 124.

Canada, post-death penalty

Thirty-five years on from that landmark legislation, and nearly 50 years after the last executions were carried out, debate over the death penalty in Canada still rages on. Public opinion has almost always favoured the death penalty in theory, if not in actual practice. A poll conducted by a private research firm this past January found that 66 percent of respondents support capital punishment in some cases, though only 41 percent of Canadians surveyed actually want to see the death penalty reinstated. Those figures are still astonishing considering how long Canada has been without capital punishment, and that the only attempt to reinstate it was defeated in 1987, 148 to 127, an even greater margin than the one in the original abolition vote.

Is there an empirical reason for the continued support of the death penalty, or the need for harsher sentences in Canada? The numbers would suggest not. Canadian murder rates have been on a steady decline since their peak in the mid-1970’s, the years leading up to abolition. As of 2009, the murder rate was at its lowest in 40 years. There has never been any conclusive evidence that abolishing the death penalty directly results in lower murder rates, but the trend debunks the theory that capital punishment is necessary to keeping murder rates low. What’s more, according to Amnesty International, the conviction rates for first-degree murder cases doubled, from 10 percent to 20 percent, within ten years of abolition, the implication being that the high stakes of capital punishment actually got in the way of justice.

And yet support for the death penalty remains. Amongst the cohort of Canadians who believe in capital punishment is Prime Minister Stephen Harper who, during an interview with CBC earlier this year, said he “think[s] there are times where capital punishment is appropriate.”

Although the PM also insisted he has no intentions of trying to reinstate capital punishment, his remarks sparked a minor furor during the recent election, as members of the opposition suggested that a Conservative majority would push the death penalty back into the lawbooks. But the most notable controversy surrounding the PM and his stance on capital punishment has been over the case of a Canadian fighting his own death sentence in the United States.

A Canadian on death row

In 1999, Alberta-born Stanley Faulder was put to death in Texas, becoming the first Canadian in almost 50 years to be executed south of the border. In the run-up to his death, the Jean Chrétien government tried to have Faulder’s sentence commuted, but the appeal was rejected by Texas’s then-governor, George W. Bush. Today, with another Canadian facing the death penalty in the States, the government is less interested in helping.

Ronald Allen Smith, of Red Deer, Alberta, has been on death row in Montana since 1983. His death sentence has been overturned three times and, each time, he has been resentenced with the same outcome: death by lethal injection. Just as they did in Stanely Faulder’s case, the Chrétien government went to bat for Smith. Throughout the early years of his appeals, Canadian officials had stayed in constant contact with Smith’s council, and made a formal request for clemency on his behalf in 1997.

Clemency requests for Canadians sentenced to death in foreign countries had been standard government policy at the time. But Harper’s Conservatives, who took power in 2006, changed that policy, announcing that they would not seek clemency for multiple murderers convicted in democratic states. They withdrew their support for Smith in late 2007, prompting Smith and his lawyers to appeal to the Canadian Federal Court. A judge there determined that the government had to follow the old policy until a suitable replacement was enacted, and Harper finally complied, and the Canadian government resumed its talks with Montana officials. Smith has currently been granted a stay of execution while he fights a civil court battle against lethal injections, which he argues are unconstitutional.

Looking ahead

Thirty-five years after it abolished capital punishment, Canada continues to soldier on without it, in spite of the opinions of 41 percent of its populace, and even the personal opinion of its prime minister. The U.S., meanwhile, continues to hand out death sentences in all but 14 states.

But American capital punishment laws are being challenged, as some people look to revive the brief ban on executions that existed between 1972 and 1976.

The execution of Andrew Grant DeYoung, was filmed in order to determine the effectiveness of the drug pentobarbital in sedating condemned criminals during lethal injections. The video will be used in the appeal of another inmate on Georgia’s death row who, much like Ronald Allen Smith, is fighting his death sentence on the grounds that execution constitutes cruel and unusual punishment.

These men’s appeals will bring before American courts the same question that was put to Canada’s legislators 35 years ago. Is the death penalty fair and just in a liberal democratic country? At the end of that long debate, it was Pierre Trudeau who, as was so often the case, provided the most eloquent, definitive answer:

“I do not deny that society has the right to punish a criminal, and the right to make the punishment fit the crime, but to kill a man for punishment alone is an act of revenge. Nothing else. Some would prefer to call it retribution because that word has a nicer sound. But the meaning is the same. Are we, as a society, so lacking in respect for ourselves, so lacking in hope for human betterment, so socially bankrupt that we are ready to accept state violence as our penal philosophy? … My primary concern here is not compassion for the murderer. My concern is for the society which adopts vengeance as an acceptable motive for its collective behaviour. If we make that choice, we will snuff out some of the boundless hope and confidence in ourselves and other people, which has marked our maturing as a free people.”