Prosecutors routinely recommend jail time for offenders and then judges lock them up — but what do they really know about the places they’re sending people?

According to a recent story in the Salt Lake Tribune, a local Utah district attorney requires his prosecutors to visit jail: “Until you feel a padded room, until you see that (inmates) have to strip down and go into a shower and somebody opens a window and hands (them) clothing — How am I ever going to understand what the power of my decision was?” district attorney Sim Gill says in the article.

Should Canadian Crown attorneys and judges also be required to visit jails and prisons?

Even defence lawyers who get a glimpse when visiting their clients in a jail “can’t really understand what it’s like to lose your liberty entirely, the indignity, the inhumanity of it,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.

“I just think it’s one of those things that if judges understood better or Crown attorneys understood better, they would think twice before they insisted on jail for some offences, or insisted on a lengthy jail sentence.”

Brown also pointed to the large number of legally innocent people who are in a jail awaiting their trial as a result of being denied bail, saying that seeing the conditions inside a correctional facility may lead a Crown attorney to reflect on their positions on bail and jurists’ decisions to deny it.

Federally-run prisons in Canada house convicted offenders serving sentences longer than two years, while provincial jails tend to house inmates serving shorter sentences as well as those awaiting trial or sentencing. And the number representing that last group, known as the “remand population,” is huge in Ontario — about 70 per cent of the inmates in provincial jails, according to Statistics Canada.

Research has also shown that Indigenous and racialized individuals are disproportionately represented in the Ontario correctional system, which has come under increasing judicial scrutiny as being cruel and harsh for overcrowding and frequent lockdowns. Those lockdowns can mean inmates have no access to showers, the phone, getting yard time or seeing their lawyers and other visitors.

Just this month, Superior Court Justice John McMahon, who has strongly criticized jail conditions before, lambasted the Ontario government for “absolutely unacceptable” lockdowns at the Toronto South Detention Centre. As a result, he reduced the sentence of a man convicted of drug and firearm offences.

“I remember my first time in a detention facility as a law student and it completely blew my mind — that one hour changed the way I thought about detention and incarceration in general,” said Toronto lawyer Angela Chaisson, who believes the jail visits should be mandatory.

“I still remember the smell of it, the smell of the centre itself and human waste, human bodies that hadn’t showered, thinking: Is this actually what it means to be incarcerated? And I don’t think you know what it means to be incarcerated until you’ve visited a jail or remand facility. And if you don’t know what it means to be incarcerated, then how can you be part of a justice system that incarcerates people?”

Queen’s University law professor Lisa Kerr, whose areas of research include prisons, said that in her view prison visits by Crown attorneys and judges would be a good thing, “and I think the more we learn from about the prison system, the more we tend to hesitate before making use of it.”

But she cautioned that there could be downsides to occasional visits, as conditions inside a particular facility can change regularly and courts don’t control where a person will end up incarcerated.

“So a prosecutor might be convinced about the availability of effective programming or decent conditions at a facility she visited last year or during her training, but this defendant winds up being sent somewhere else or being ineligible for the program,” Kerr told the Star in an email. “A judge might visit a particular facility in her region that has found a way to end the use of segregation, but a defendant she sentences might get transferred away from that facility halfway though his sentence and wind up spending a great deal of time in segregation.”

Rather than focusing on making visits mandatory, Kerr suggests it might be even more important to make it mandatory for Crown attorneys to file evidence about prison conditions or prison programs when making submissions on sentencing.

“If a judge is asked to make a decision based on a claim about what prison will be like for this defendant, they should only be asked to do so in the face of a proper evidentiary record,” she said. “That puts the burden on the Crown to maintain current, accurate knowledge about the correctional facilities and relevant policies in her region.”

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There is no mandatory program in Ontario for either Crown attorneys or judges to visit a jail or prison. A Ministry of the Attorney General spokesman said a prosecutor can set up a visit to their local correctional facility as part of their ongoing professional development, but the government doesn’t track how many Crown attorneys do this.

The National Judicial Institute, responsible for providing judicial education to the country’s judges, runs a voluntary five-day program, alternating between Ontario and B.C. each year, in which judges from across the country visit federal and provincial correctional facilities, Indigenous healing centres, attend a parole hearing and hear from experts, inmates and people on parole.

The program’s genesis can be traced back to long-time Toronto provincial court judge David Cole, who piloted a program of bringing local judicial colleagues to jails in the 1990s before it was turned over to the judicial institute.

He said the current program includes about 40 judges a year, aimed mainly at recently appointed judges. Cole said it remains an eye-opening experience, helping to bust myths that judges themselves have about the places where they send so many people each year. It also serves to enlighten the judges on the special needs of Indigenous accused persons and offenders, and those with mental health issues.

“They also see things like how (those awaiting trial) spend their days in Ontario. We have the second-highest remand population in the country, but the judges don’t really think about what somebody’s doing on remand,” Cole told the Star.

“We tend to think of jails as places where people who are sentenced go, but at the provincial level, those numbers have been declining for years. So (the visiting judges) see what people do and don’t do, and learn from the staff about the management difficulties, especially with the mentally ill.”

Cole said one of the most interesting parts of the five-day program is the meeting between the judges and federal prison inmates serving lengthy sentences, and the latter are asked to reveal everything they don’t like about judges in court.

“What they tell the judges are really important for judges to know: We don’t understand your English. You don’t take the time to explain. One that blew me away was: ‘You say Good morning to everybody else in the courtroom, you don’t say good morning us,’ and ‘We don’t like you laughing and joking with the lawyers.’

“Personally, I watch the judges’ faces and all of a sudden you see these judges thinking about having to change some things.”

But don’t just limit the visits to judges and Crown attorneys, says Senator Kim Pate — parliamentarians, who craft the laws that judges then apply, should also be going into prisons. Pate, the former executive director of the Canadian Association of Elizabeth Fry Societies, recently spent three days touring facilities with a number of her Senate colleagues, where they met with prisoners and staff.

“I hope this means there will be a different understanding and awareness as we consider legislation, as we consider conditions that give rise to certain groups being overrepresented in prisons: women, Indigenous people, those with mental health issues, other racialized groups, individuals of African-Canadian descent,” Pate told the Star.

“Ultimately, what a number of us want to work on is creating an environment where there are fewer people who end up marginalized and victimized as well as criminalized.”