Litigating the Carceral Soundscape

Authors

David Howes, Centre for Sensory Studies, Concordia University
Simcha Walfish, Faculty of Law, McGill University

Document Type

Article

Abstract

Sound has always been a material issue in prisons, whether it be in connection with sonic surveillance, the “silent cell,” or the insistence of sound (excessive noise, counter-carceral music making). This article asks: How and when does the carceral soundscape become a litigable issue? Our article opens with a discussion of the challenges involved in attempting to study the sonic ambiance of the penitentiary through the medium of written documents and proposes a methodology of “sensing between the lines” by way of a solution. It goes on to analyze the “moral architecture” at the foundation of the modern prison in an effort to excavate the sonic dimensions of incarceration in the context of a system that was designed with silence at its core. Solitude and silence were presumed to have an “emancipatory effect” on the prisoner by attuning the carceral subject to “the inner voice of conscience” through forced withdrawal from the distractions of the senses. The next part considers the ways that, despite attempts to manage sound, its insistence has resisted these forms of control. It presents solitary confinement as a crucial site to explore the ways in which enforced silence, as an organizing principle, has undergone several contortions that gave rise to alternative rationales such as “structured intervention,” yet has persisted. The article then explores how this enduring silence has figured in the contemporary case law, alongside other forms of acoustic violence, such as excessive noise and sonic resistance to the conditions of incarceration on the part of prison inmates (e.g., rapping to beat the rap). While some cases describe the experience of the prison as one of unbearable silence, others describe it as noise without respite. This research highlights the ways that sound in prison has remained an important site of discipline and contestation that reverberates through the case law, yet without being appreciated adequately by the courts. The article concludes with observations about the ways that probing the role of sound in the logic of incarceration can complement litigation efforts that question carceral logics.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Howes, David and Walfish, Simcha. "Litigating the Carceral Soundscape." Osgoode Hall Law Journal 60.1 (2023) : 175-219.
DOI: https://doi.org/10.60082/2817-5069.3878
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss1/4

References

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3. Michel Foucault, "The Eye of Power" in Colin Gordon, ed, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (Pantheon Books, 1980) 146.

4. "Introduction: Into Sound…Once More with Feeling" in Michael Bull & Les Back, eds, The Auditory Culture Reader (Berg, 2003) 1 at 5. Gillian Furlong writes: "It was not just the architectural design that exercised Bentham. He also designed an internal communication system of 'conversation tubes' for his panopticon prison. At first the device was to run between the inspection lodge and each cell, enabling the governor to instruct and admonish each inmate; in later proposed plans the system was expanded to connect the lodge and the inspection galleries. Bentham delighted in the novel technique of these tubes - tools for constantly enforcing a clockwork regularity on the administration of the prison. Such was Bentham's blind faith in his tubes' efficacy over long distances that he suggested to the Home Office that his prison could be the nerve-centre of a far greater network, stretching for hundreds of miles underground and forming a national system of intelligence and defence". Gillian Furlong, "Designs for a panopticon prison by Jeremy Bentham" in Treasures from UCL, 1st ed (UCL Press, 2015) 136 at 136, 139. https://doi.org/10.2307/j.ctt1g69xrh.46

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6. Tom Rice, "Sounds Inside: Prison, Prisoners and Acoustical Agency" (2016) 2 Sound Studies 6 at 10, 13; Hemsworth, "Carceral Acoustemologies," supra note 5 at 18; Dave Seglins & Laura MacNaughton, "Cellphones Pour Into Prisons" (8 June 2010), online: CBC News cbc.ca/news/canada/cellphones-pour-into-prisons-1.881948 [perma.cc/3Y7B-FM6L]. https://doi.org/10.1080/20551940.2016.1214455

7. "Regulating the Carceral Soundscape: Media Policy in Prison" (3 June 2013), online: Sounding Out! soundstudiesblog.com/2013/06/03/regulating-the-carceral-soundscapemedia-policy-in-prison [perma.cc/6SH3-VZCJ].

8. "Solitary Confinement, Prisoner Litigation, and the Possibility of a Prison Abolitionist Lawyering Ethic" (2017) 32 CJLS 165 [Parkes, "Prisoner Litigation"]. https://doi.org/10.1017/cls.2017.16

9. Hemsworth, "Carceral Acoustemologies," supra note 5 at 17. The concept of acoustemology was coined by the anthropologist Steven Feld. See "Acoustemology" in David Novak & Matt Sakakeeny, eds, Keywords in Sound (Duke University Press, 2015) 12 at 12. The notion of soundscape derives from the work of the late R Murray Schafer, acoustic ecologist and composer extraordinaire. See The Tuning of the World (Knopf, 1977). https://doi.org/10.2307/j.ctv11sn6t9.4

10. Sensori-legal studies emerged out of the crossing of sensory studies with socio-legal studies. Socio-legal studies introduced a shift in legal scholarship from a focus on rules to a focus on meaning, with law coming to be seen as a "frame of signification," following the work of Clifford Geertz. See Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books, 1983). See also Austin Sarat & Thomas R Kearns, Law in the Domains of Culture (University of Michigan Press, 1998); Roderick Alexander Macdonald, Lessons of Everyday Law (McGill-Queen's University Press for the Law Commission of Canada and the School of Policy Studies, 2002). Sensori-legal studies shifts the onus again, from a focus on law as meaning-making (Macdonald) to law as sense-making activity. See David Howes & Constance Classen, "The feel of justice: Law and the regulation of sensation" in Ways of sensing: Understanding the senses in society (Routledge, 2014) [Howes & Classen, Ways of sensing]; Sheryl Hamilton et al, eds, SENSING LAW, 1st ed (Routledge, 2018); David Howes, "Prologue: Introduction to Sensori-Legal Studies" (2019) 34 CJLS 173; Sheryl Hamilton, "Introduction: Sensuous governance" (2020) 15 Senses & Society 1. The latter shift is consonant with the multiple meanings of the term "sense": It includes both sensation and signification, feeling and meaning (as in the "sense" of a word) in its spectrum of referents, and sensori-legal studies embraces them all. It treats law as grounded in the body and senses, as evidenced by such representations as "the right hand," the iconography of justice (a female figure holding scales and blindfolded but with ears unfettered in accordance with the maxim audi alteram partem), the rules of evidence, the atmosphere of the courtroom (including the insistence on decorum), the roving police officer with their "eyes on the street," and the sensory design of the prison. For an overview of breaking research in sensori-legal studies, see "Probes," online: Law and the Senses: Explorations in Sensori-Legal Studies lawandthesenses.org/probes [perma.cc/7FC4-57KC]. Regarding sensory studies generally, see David Howes, The Sensory Studies Manifesto: Tracking the Sensorial Revolution in the Arts and Human Sciences (University of Toronto Press, forthcoming 2022).

11. "Carceral Acoustemologies," supra note 5 at 29.

12. Ibid at 26, 20.

13. Ibid at 20.

14. "The experience of [ethnographic] fieldwork is an experience of sharing in the sensible [le partage du sensible]. We observe, we listen, we speak with others, we partake of their cuisine. We try to feel along with them what they experience." François Laplantine, The Life of the Senses: Introduction to a Modal Anthropology (Routledge, 2015) at 2. See further David Howes, "Multisensory Anthropology" (2019) 48 Annual Rev Anthropology 17 (on the methodology of participant sensation); Erin Lynch, David Howes & Martin French, "A Touch of Luck and a 'Real Taste of Vegas': A Sensory Ethnography of the Montreal Casino" (2020) 15 Senses & Society 192. https://doi.org/10.1080/17458927.2020.1773641

15. See Kate Herrity, "Hearing Behind the Door: The Cell as a Portal to Prison Life" in Jennifer Turner & Victoria Knight, eds, The Prison Cell: Embodied and Everyday Spaces of Incarceration (Springer, 2020) 239 https://doi.org/10.1007/978-3-030-39911-5_11; Kate Herrity, Bethany E Schmidt & Jason Warr, eds, Sensory Penalties: Exploring the Senses in Spaces of Punishment and Social Control (Emerald Group, 2021) [Sensory Penalties]. In particular, see Kate Herrity, "Hearing Order in Flesh and Blood: Sensemaking and Attunement in the Pub and the Prison" in ibid, 3 at 3-18 https://doi.org/10.1108/978-1-83909-726-320210002; Irene Marti, "Sensing Freedom: Insights Into Long-Term Prisoners' Perceptions of the Outside World" (2021) 2 Incarceration 1 [Marti, "Sensing Freedom"]. https://doi.org/10.1177/26326663211013703

16. "Sensing Freedom," supra note 15 at 5 [emphasis in original].

17. Ibid at 5, 10.

18. Irene Marti, Living the Prison: An Ethnographic Study of Indefinite Incarceration in Switzerland (PhD Thesis, Université de Neuchâtel, 2020) [unpublished] at 186, 239-40; Marti, "Sensing Freedom," supra note 15 at 11.

19. Hemsworth, "Carceral Acoustemologies," supra note 5 at 18; Emma K Russell & Bree Carlton, "Counter-Carceral Acoustemologies: Sound, Permeability and Feminist Protest at the Prison Boundary" (2020) Theoretical Criminology 296 at 300-301 [Russell & Carlton, "Counter-Carceral Acoustemologies"]; Nigel Poor, Earlonne Woods & Antwan Williams, online (podcast): Ear Hustle earhustlesq.com [perma.cc/V8XL-NPB7].

20. Supra note 6 at 8, citing R Murray Schafer, A Sound Education: 100 Exercises in Listening and Sound-Making (Arcana Editions, 1992).

21. Hugh J Haley, "Does the Law Need to Know the Effects of Imprisonment?" (1984) 26 Can J Crim 479 at 488. https://doi.org/10.3138/cjcrim.26.4.479

22. "Sensing between the Lines" is the key to writing sensory history just as "feeling along with others" is the key to doing sensory ethnography. Laplantine, supra note 14; Howes, supra note 14. This method was pioneered in a book by the cultural historian Constance Classen where she pierced the veil of the Spanish Chronicles (which were pervaded by a literate mindset and laced with racist stereotypes and other derogatory representations) and exposed the social life of the senses and fundamentally oral-aural ideology and practices of the Inca state. See Inca Cosmology and the Human Body (University of Utah Press, 1993). See also Constance Classen, ed, A Cultural History of the Senses (Bloomsbury Academic, 2014) vol 6; Howes & Classen, Ways of Sensing, supra note 10.

23. "Earwitnessing: Critical reflections on sonic historical geographies" (2017) 45 Historical Geography 147 at 148 [Hemsworth et al, "Earwitnessing"]. https://doi.org/10.1353/hgo.2017.0012

24. "Carceral Acoustemologies," supra note 5 at 21.

25. (NYU Press, 2016) at 14.

26. Ibid.

27. "Counter-Carceral Acoustemologies," supra note 19 at 298.

28. See e.g. Sheila Wildeman, "Disabling Solitary: An Anti-Carceral Critique of Canada's Solitary Confinement Litigation" in Claire Spivakovsky, Linda Steele & Penelope Weller, eds, The Legacies of Institutionalisation: Disability, Law and Policy in the 'Deinstitutionalised' Community (Bloomsbury, 2020) 87 at 89-90.

29. (Duke University Press, 2018) at 24-25.

30. (University of California Press, 2007) at 11.

31. Hemsworth, "Carceral Acoustemologies," supra note 5 at 28.

32. Ibid at 28-29; Erin E Lynch, "'Guilty of Having a Fantastic Time in Jail!': On the Touristification of Prison Experiences" (15 April 2020), online: Law and the Senses lawandthesenses.org/probes/guilty-of-having-a-fantastic-time-in-jail-on-the-touristification-of-prison-experiences [perma.cc/2PRM-ZX2R].

33. "Earwitnessing," supra note 23 at 150.

34. Most come out of federal institutions, where conditions are often somewhat better. Those incarcerated in provincial institutions and remand centres are there for only short periods of time and have fewer avenues for recourse when their rights are violated. See Justin Ling, "Canada's Prisons are Failing" (12 August 2019), online: CBA National [perma.cc/TA4C-JJDP]. By the time an issue does reach trial, it is often moot. See Debra Parkes, "A Prisoners' Charter?: Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedoms" (2007) 40 UBC L Rev 629 at 668 [Parkes, "A Prisoners' Charter"]. The majority of reported cases involve male prisoners, who represent 94 per cent of federal inmates. See Correctional Service of Canada, "Statistics and Research on Women Offenders" (16 May 2019), online: www.csc-scc.gc.ca/women/002002-0008-en.shtml [perma.cc/Z5ZD-P7ES]. They give less insight into the gendered experience of prison and the unique disadvantages for women and transgender inmates (ibid at 662). In addition, they do not give significant insight into what Giovanna Shay calls the "racialized law-making" of corrections regulation. See "Ad Law Incarcerated" (2009) 14 Berkeley J Crim L 329 at 331.

35. See Shay, supra note 34. Shay notes that "[d]espite its importance, the area of corrections regulation is a kind of "no-man's land." In many jurisdictions, and in many subject areas, prison and jail regulations are formulated outside of public view. Because of the deference afforded prison and jail officials under prevailing constitutional standards, such regulations are not given extensive judicial attention. Nor do they receive much focus in the scholarly literature" (ibid at 321). See also Parkes, "A Prisoners' Charter," supra note 34 at 670 (by way of example: When a grievance reaches a judge for judicial review, the decision that comes out of that system is reviewed on a deferential standard of review). Regarding Charter claims: The Charter did not radically change the legal position of prisoners because, "[o]f the prisoners' Charter claims that do make it to court, many continue to be met with a deferential, 'hands off' approach at various stages of the Charter analysis" (ibid). Courts characterize prison rules and decisions as "administrative" and subject them to a deferential standard of review. This is particularly so when it is "alleged that 'safety' or 'security' is at stake" (ibid). Each cause of action or application presents its own challenges. Regarding grievances: The internal grievance system has been described as "persistently dysfunctional." See Adelina Iftene, Lynne Hanson & Allan Manson, "Tort Claims and Canadian Prisoners" (2013) 39 Queen's LJ 655 at 656. Regarding tort claims: Tort claims are difficult to pursue without counsel and great cost. When they do reach trial, judges hold correction staff and institutions to "a lower standard of care than defendants in the general community" (ibid at 681). Judges apply rigorous standards of causation. They refuse to recognize novel duties of care to hold government actors to account for the conditions in prisons, "particularly where there are conflicting duties at stake or where there are resource implications. For this reason, general conditions of confinement are unlikely to ground successful private claims even though we often see infringements of the legal provisions" (ibid). Regarding habeas corpus: nor does habeas corpus provide a ready avenue for redress. While the Supreme Court of Canada took care in Khela to resist government attempts to narrow prisoners' access to habeas corpus, it also introduced new problems for prisoners by holding for the first time that the standard of review for the substance of decisions of prison officials is reasonableness. See Mission Institution v Khela, 2014 SCC 24; Lisa Kerr, "Easy Prisoner Cases" (2015) 71 SCLR (2d) 235 at 235, 237. This imports the logics of administrative law into constitutional analysis, opening the door to "submissive judicial deference" to the decisions of prison officials (ibid at 262). https://doi.org/10.60082/2563-8505.1311

36. See e.g. Weatherall v Canada (Attorney General), [1993] 2 SCR 872 at 877 [Weatherall] ("imprisonment necessarily entails surveillance, searching and scrutiny").

37. Michel Foucault, The Archaeology of Knowledge and the Discourse on Language, translated by AM Sheridan Smith (Pantheon Books, 1972). Foucauldian "discourse analysis" is well-suited to the analysis of cultures already conceived of as "discursive formations" or "texts," but sensory studies (including sensori-legal studies) questions the verbocentrism of such an approach.

38. Solitary Confinement: Social Death and Its Afterlives (University of Minnesota Press, 2013) at 137.

39. "Legal Slaves and Civil Bodies" (2001) 2 Nepantla 3, cited in Guenther, supra note 38 at 137.

40. Supra note 6 at 8.

41. Ibid at 9.

42. "Carceral Acoustemologies," supra note 5 at 29.

43. Foucault, Discipline and Punish, supra note 2 at 201.

44. Michael Jackson, Prisoners of Isolation: Solitary Confinement in Canada (University of Toronto Press, 1983) at 42-43. Since Jackson's book was published, the penitentiaries in Laval and Kingston were closed in 1989 and 2013, respectively. The penitentiaries in Stoney Mountain, Manitoba (1877) and Dorchester, New Brunswick (1880) remain open.

45. Ibid.

46. Parkes, "Prisoner Litigation," supra note 8 at 179.

47. (W Clarke, 1792) at 6, 33.

48. Ibid at 27-28; Jackson, supra note 44 at 13 [emphasis in original].

49. Jackson, supra note 44 at 6.

50. Ibid at 13-14.

51. Ibid at 14.

52. CJ Taylor, "The Kingston, Ontario Penitentiary and Moral Architecture" (1979) 12 Social History 385 at 387.

53. Ibid.

54. Discipline and Punish, supra note 2 at 239; Jackson, supra note 44 at 21.

55. Are Prisons Obsolete? (Seven Stories Press, 2003) at 47.

56. Ibid at 48.

57. Solitude in Imprisonment, with Proper Profitable Labour and a Spare Diet, the Most Humane and Effectual Means of Bringing Malefactors, Who Have Forfeited Their Lives, or Are Subject to Transportation, to a Right Sense of Their Condition; with Proposals for Salutary Prevention: and how to Qualify Offenders and Criminals for Happiness in both Worlds, and to Preserve the People, in the Enjoyment of the Genuine Fruits of Liberty, and Freedom from Violence (F Bew, 1776) at 42-43 [emphasis in original].

58. Ibid at 143 [emphasis in original].

59. A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (Pantheon Books, 1978) at 61-62. See also Jackson, supra note 44 at 11.

60. Ignatieff, supra note 59 at 61.

61. Ibid at 58.

62. Ibid. Robert Allan Cooper argues that Howard never accepted the idea of solitary confinement except for especially incorrigible inmates, for short periods of times. However, this idea seems to have been associated with Howard from its early days. Cooper cites an 1804 letter from Howard's close friend John Coakley Lettsom, who asserts that the "practice of solitary confinement has been said to have originated from his [Howard's] recommendation; which, however, is not to be traced in his writings, and, I am persuaded, could not have been derived from his conversation." See "Ideas and Their Execution: English Prison Reform" (1976) 10 Eighteenth-Century Studies 73 at 80.

63. John Bender, Imagining the Penitentiary: Fiction and the Architecture of Mind in Eighteenth-Century England (University of Chicago Press, 1987) at 31; AY Davis, supra note 55 at 54.

64. Ignatieff, supra note 59 at 78. See also Jackson, supra note 44 at 13.

65. Robert Jütte, A History of the Senses: From Antiquity to Cyberspace, translated by James Lynne (Polity Press, 2005) at 162.

66. Ibid.

67. Ludwig Friedrich v Froriep, Ueber die Isolierung der Sinne, als Basis Eines Neuen Systems der Isolirung der Strafgefangenen (Land-Industrie-Comptoir, 1846) at 38, online: https://archive.org/details/ueberdieisolier00frorgoog/page/n37/mode/2up [https://perma.cc/B44G-6QQP]; see Jütte, supra note 65 at 163.

68. Caroline Arscott, "Convict Labour: Masking and Interchangeability in Victorian Prison Scenes" (2000) 23 Oxford Art J 123. https://doi.org/10.1093/oaj/23.2.120

69. Jütte, supra note 65 at 164.

70. Jackson, supra note 44 at 6.

71. R v Gladue, [1999] 1 SCR 688 at para 53.

72. Taylor, supra note 52 at 385.

73. Ibid at 387. The cell-block design also drew on architecture of Sing Sing (ibid at 392).

74. Ibid at 395.

75. Ibid at 387.

76. Ibid.

77. William Powers, Appendix to the Journal, 1832-1833, Report of the Commissioners Appointed by an Act of the Last Session of the Provincial Legislature, For the Purpose of Obtaining Plans and Estimates of a Penitentiary to be Erected in This Province at 192 [emphasis in original].

78. Ibid [emphasis in original].

79. Acoustic Territories: Sound Culture and Everyday Life (Bloomsbury USA, 2010) at 71, cited in Katie Hemsworth, "'Feeling the Range': Emotional Geographies of Sound in Prisons" (2016) 20 Emotion Space & Society 90 at 95 [Hemsworth, "Feeling the Range"]. https://doi.org/10.1016/j.emospa.2016.05.004

80. "Carceral Acoustemologies," supra note 5 at 23.

81. Ibid at 22.

82. Ibid at 23.

83. Ibid.

84. Hemsworth, "Feeling the Range," supra note 79 at 95. See also Nicholas Bujalski, "'Tuk, tuk, tuk!' A History of Russia's Prison Knocking Language" (2022) 81 Russian Rev 491. https://doi.org/10.1111/russ.12372

85. Brazeau v Attorney General (Canada), 2019 ONSC 1888 at para 15 [Brazeau].

86. "Commissioner's Directive 711: Structured Intervention Units" (30 November 2019), online: Correctional Service Canada csc-scc.gc.ca/politiques-et-lois/711-cd-en.shtml [perma.cc/4GRP-ME3M]. See also Corrections and Conditional Release Act, SC 1992, c 20, s 34(1) [CCRA].

87. "Dissociation" was governed by the Penitentiary Service Regulations. PC 1962-302, SOR/62-90, s 2.30, online (pdf): [perma.cc/RL35-TYYX]. It was permitted "for the maintenance of good order and discipline in the institution" or when it was in the "best interests of an inmate." The regulation, and its enabling legislation, the Penitentiary Act, was replaced, in 1992, by the Corrections and Conditional Release Act, which renamed the practice "segregation." See CCRA, supra note 86, ss 31-37, 44(1)(f ). Bill C-83 replaced sections 31-37 (administrative segregation) with "structured intervention units" and repealed subsection 44(1)(f ) (disciplinary segregation). See An Act to amend the Corrections and Conditional Release Act and another Act, 1st Sess, 38th Parl, 2019, cl 10-11 (assented to 21 June 2019).

88. Parkes, "Prisoner Litigation," supra note 8 at 179.

89. "Solitary by Another Name is Just as Cruel" (12 November 2018), online: The Globe and Mail theglobeandmail.com/opinion/article-solitary-by-another-name-is-just-as-cruel [perma.cc/M3AQ-5ZKQ].

90. Geraint B Osborne, "Scientific Experimentation on Canadian Inmates, 1955 to 1975" (2006) 45 How J Crim Justice 284 at 285. https://doi.org/10.1111/j.1468-2311.2006.00422.x

91. Ibid at 286.

92. Ibid.

93. Ibid at 286-87.

94. Ibid at 298.

95. Supra note 44 at 43.

96. Ibid.

97. Senate of Canada, Standing Senate Committee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (8 May 2019) (Hon Ralph Goodale, PC, MP).

98. Ibid.

99. Ibid.

100. Ibid [emphasis added]. Whether the new SIU regime has ended the practice of segregation remains to be seen. As the Structured Intervention Unit - Implementation Advisory Panel noted in its scathing First Year Report, "[t]ime spent out of the cell and in meaningful human contact were factors that were supposed to distinguish the new SIU regime from what preceded it." However, the government did not release the data necessary for the panel to evaluate the new regime. The Structured Intervention Unit - Implementation Advisory Panel, Statement, by Anthony N Doob (19 August 2019) at 2, citing Public Safety Canada, The Structured Intervention Unit - Implementation Advisory Panel, First Year Report, by Anthony Doob (11 August 2020). In April 2022, the Canadian Human Rights Tribunal considered the government's contention that including SIUs in a long-standing human rights complaint concerning administrative segregation would amount to "fresh complaints" that had "no factual or legal link" to the original complaints. The Tribunal allowed the complaint to consider SIUs, finding that "[a]llegations of systemic discrimination related to isolated and restrictive conditions of confinement have been part of these proceedings since their outset." Canadian Association of Elizabeth Fry Societies v Correctional Services of Canada, 2022 CHRT 12 at paras 8, 17 [CAEFS]. Simcha Walfish is co-counsel to the Canadian Association of Elizabeth Fry Societies in this case.

101. See e.g. Canadian Civil Liberties Association v Canada, 2019 ONCA 243; CAEFS, supra note 100; British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62 [BCCLA]; Brazeau, supra note 85.

102. Brazeau, supra note 85 at para 89, citing Charles Dickens, American Notes for General Circulation (Chapman & Hall, 1913); Reddock v Canada (Attorney General), 2019 ONSC 5053 at para 111 [Reddock]; Francis v Ontario, 2020 ONSC 1644 at para 61 [Francis].

103. Brazeau, supra note 85 at para 89.

104. Ibid.

105. 2019 ONSC 535 at para 415 [Capay].

106. Ibid at para 414. See Dylan Robinson, "Intergenerational Sense, Intergenerational Responsibility" in Keavy Martin & Dylan Robinson, eds, Arts of Engagement: Taking Aesthetic Action in and Beyond the Truth and Reconciliation Commission of Canada (Wilfrid Laurier University Press, 2016) 43 (on the parallels between the sensory regime of the prison and the incarceration of the senses and subjects in the Indian Residential School as of Indigenous material culture in the museum). See also Dylan Robinson, s thá:ytset: shxwelí li te shxwelítemelh xíts'etáwtxw / The Museum's Incarceration of Indigenous Life (Keynote delivered at ISEA2020: 26th International Symposium on Electronic Art, 2020) [unpublished]. https://doi.org/10.51644/9781771121705-004

107. Capay, supra note 105 at para 414.

108. Ibid at para 62.

109. Ibid at paras 18, 20, 21

110. Ibid at para 72.

111. Ibid at para 51

112. Ibid at para 54.

113. Ibid at para 55.

114. Ibid at para 56.

115. Ibid.

116. Ibid at para 257.

117. Supra note 38 at xii.

118. Ibid.

119. BCCLA, supra note 101 para 114.

120. Parkes, "Prisoner Litigation," supra note 8 at 172.

121. BCCLA, supra note 101 at para 281.

122. Ibid at para 225.

123. 2010 BCSC 805 at para 249 [Bacon].

124. Ibid.

125. Ibid.

126. Ibid.

127. Ibid.

128. Ibid.

129. Ibid.

130. Guenther, supra note 38 at xxi.

131. Ignatieff, supra note 59 at 58. See also Phillip Vannini, Dennis Waskul & Simon Gottschalk, The Senses in Self, Society, and Culture: A Sociology of the Senses (Routledge, 2012); David Howes, Senses and Sensation: Critical and Primary Sources, vol 2, History and Sociology (Bloomsbury, 2018).

132. Guenther, supra note 38 at xxiv [emphasis in original].

133. See The Differend: Phrases in Dispute, translated by Georges Van den Abbeele (University of Minnesota Press, 1988).

134. (1996) 177 NBR (2d) 1 (CA) [MacPherson]; Parkes, "A Prisoners' Charter," supra note 34 at 656.

135. MacPherson, supra note 134 at para 31.

136. Ibid at para 29.

137. Ibid at para 30.

138. Ibid at paras 36-37.

139. Ibid at para 40.

140. 2004 FC 942 at para 2 [Wild].

141. Ibid at para 7.

142. Ibid at para 41.

143. Ibid at para 43.

144. Ibid at para 44.

145. Ibid at para 45.

146. Ibid.

147. Ibid at para 53. On the evidentiary problems that arise in cases involving the litigation of allegedly abnormal noise, see Michael Mopas, "Howling Winds: Sound, Sense, and the Politics of Noise Regulation" (2019) 34 CJLS 307. https://doi.org/10.1017/cls.2019.19

148. 2012 FC 464 at para 2 [Cerra].

149. Ibid at para 5.

150. Ibid at para 7.

151. Ibid at para 8.

152. 2010 QCCQ 4292 at para 98 [Bois].

153. Ibid at para 99 ("[t]he Accused simply describes the conditions that defendants experience daily in a remand centre while waiting for their trial or their sentence" [translated by authors]).

154. Ibid at para 100.

155. 2004 BCSC 592 at para 7.

156. Ibid at para 20.

157. Supra note 133 at xi.

158. Benjamin v Fraser, 161 F Supp 2d 151 at 185 (SD NY 2001), citing Toussaint v McCarthy, 801 F 2d 1080 at 1110 (9th Cir 1986), cert denied, 481 US 1069 (1987).

159. John Boston & Daniel E Manville, Prisoners' Self-Help Litigation Manual (Oxford University Press, 2010) at 24.

160. Stoever, supra note 25; Eidsheim, supra note 29. See also Holger Schulze, ed, The Bloomsbury Handbook of the Anthropology of Sound (Bloomsbury, 2020).

161. 2017 ONSC 2653.

162. Ibid at para 14.

163. Ibid at para 15 [emphasis in original].

164. Ibid.

165. Ibid at para 16.

166. Ibid. On apprehension as a sensori-legal category, see Safiyah Rochelle, "Encountering the 'Muslim': Guantánamo Bay, Detainees, and Apprehensions of Violence" (2019) 34 CJLS 209. https://doi.org/10.1017/cls.2019.14

167. "À l'intérieur: faire son temps" (21 November 2018), online (podcast): Radio-Canada ici.radio-canada.ca/premiere/balados/6201/rap-carceral-prison-musique-gang-rue/episodes/420815/detention-incarceration-torture-souldia-entrevue [perma.cc/ET2C-5G2K].

168. Ibid at 00h:21m:30s.

169. "Song Uncaged: Prison Temporality and Black Pop Culture Escape" (2014) 16 Souls 227 at 230. https://doi.org/10.1080/10999949.2014.968976

170. Ibid at 228.

171. Ibid at 231.

172. Ibid at 234, citing Angela Davis, An Autobiography (Random House, 1974).

173. Ibid.

174. "Sonic Jihad-Muslim Hip Hop in the Age of Mass Incarceration" (2015) 11 Fla L Rev 201. https://doi.org/10.25148/lawrev.11.1.15

175. Ibid at 203.

176. SpearIt, "Raza Islamica: Prisons, Hip Hop & Converting Converts" (2012) 22 Berkeley La Raza Law Journal 175 at 188 [SpearIt, "Raza Islamica"].

177. Ibid at 189.

178. Ibid at 191.

179. Ibid at 196 [emphasis in original].

180. Beverly Thomas McCloud, "African-American Muslim Women" in Yvonne Yazbeck Haddad, ed, The Muslims of America (Oxford University Press, 1991) 177 at 178, cited in SpearIt, "Raza Islamica," supra note 176 at 196. https://doi.org/10.1093/oso/9780195067286.003.0013

181. Gauri Viswanathan, Outside the Fold: Conversion, Modernity, and Belief (Princeton University Press, 1998), cited in SpearIt, "Raza Islamica," supra note 176 at 196. On the connection between sound and inner transformation, see Charles Hirschkind, The Ethical Soundscape: Cassette Sermons and Islamic Counterpublics (Columbia University Press, 2006); Schulze, supra note 160.

182. Manning Marable & Hishaam D Aidi, eds, Black Routes to Islam (Springer, 2009) at 218, cited in SpearIt, "Raza Islamica," supra note 176 at 197. https://doi.org/10.1057/9780230623743

183. Ibid.

184. SpearIt, "Raza Islamica," supra note 176 at 189, citing H Samy Alim, Roc the Mic Right: The Language of Hip Hop Culture (Routledge, 2006) at 33.

185. Ngozi Okidegbe, "A 'Bad Rap': R. v. Skeete and the Admissibility of Rap Lyric Evidence" (2018) 66 Crim LQ 294, s 1ff ("Contextualization"). See also Abenaa Owusu-Bempah, "Prosecuting Rap: What does the case law tell us?" (2022) LSE Legal Studies Working Paper No 07/2022, online: SSRN papers.ssrn.com/sol3/papers.cfm?abstract_id=4062205# [perma.cc/W2TT-CPPQ]; David M Tanovich, "R v Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases" (2016) 24 Crim Reports 27.

186. Christine Reyna, Mark Brandt & G Tendayi Viki, "Blame It on Hip-Hop: Anti-Rap Attitudes as a Proxy for Prejudice" (2009) 12 Group Processes & Intergroup Relations 361 at 364, cited in Okidegbe, supra note 185. https://doi.org/10.1177/1368430209102848

187. Supra note 185 at 14.

188. "Après la prison, les conditions de liberation" (21 November 2018), online (podcast): Radio-Canada ici.radio-canada.ca/premiere/balados/6201/rap-carceral-prisonmusique-gang-rue/episodes/420816/conditions-liberation-connaisseur-bilo-entrevue [perma.cc/7NTE-X4YA].

189. Ibid.

190. Chris Waller, "'Darker than the Dungeon': Music, Ambivalence, and the Carceral Subject" (2018) 31 Intl J Sem L 275 at 278. https://doi.org/10.1007/s11196-018-9558-9

191. Suzanne G Cusick, "'You are in a Place That is Out of the World...': Music in the Detention Camps of the 'Global War on Terror'" (2008) 2 J Society for American Music 1 at 3. https://doi.org/10.1017/S1752196308080012

192. Suzanne G Cusick, "Towards an Acoustemology of Detention in the 'Global War on Terror'" in Georgina Born, ed, Music, Sound and Space (Cambridge University Press, 2013) 275 at 288. https://doi.org/10.1017/CBO9780511675850.017

193. Ibid at 276.

194. Ibid.

195. Ibid.

196. Ibid at 288.

197. Ibid at 276, 288.

198. Maria Ristani, "Sound Prisoners: The Case of the Saydnaya Prison in Syria" (2020) 1 Violence 273 at 281. In 2016, five former detainees, Amnesty International, and Forensic Architecture created an acoustic model of the Saydnaya prison, based on survivors' earwitness testimony. See "Saydnaya: Inside a Syrian Torture Prison" (2016), online: Forensic Architecture forensic-architecture.org/programme/exhibitions/memory-justice [perma.cc/4M59-27PM]. See also Greg Elmer & Stephen J Neville, "The Resonate Prison: Earwitnessing the Panacoustic Affect" (2021) 19 Surveillance & Society 11. https://doi.org/10.1177/2633002420945711

199. Ristani, supra note 198 at 281.

200. "Feeling the Range," supra note 79 at 93.

201. [1976] 1 FC 570 at 602. In Bacon, the radio receives three channels. See supra note 123 at para 64. In R v Blanchard, the radio receives four channels (and none of them CBC). See 2017 ABQB 369 at para 42. In R v Francis, the inmate's punishment for "Fights/Assaults/ Threatens" at Grand Cache Institution was recorded as "Serious (20 days segregation, no T.V., Radio, magazine privileges suspended for 90 Days)." 2006 ABQB 803 at para 30. In Langlois v Canada (Attorney General), "[t]he applicant was convicted under subsection 40 (l) of the Act and sentenced to six days of detention with radio only." 2004 FC 702 at para 19. In Wilcox, the inmate's radio in segregation had four channels. See Wilcox v Alberta, 2020 ABCA 104 at para 10 [Wilcox]. In Dorsey v Independent Chairperson at Millhaven Penitentiary, the inmate was punished with "sanction of punitive dissociation (disciplinary segregation) and loss of privileges (removal of access to radio, tape player and television) for five days." 2002 FCT 1085 at para 1. In Graham v Millhaven Penitentiary, the applicant was sent to disciplinary segregation and was unsuccessful in arguing that he should be allowed the same privileges of access to radio and television as those in administrative segregation. See 2004 FC 1344 at paras 18-20, 31. Alberta's prison regulations specifically state that prisoners in disciplinary units, a form of solitary confinement, are not entitled to "radio, television and the canteen, visits from family and friends and receipt of incentive allowance." See Correctional Institution Regulation, Alta Reg 205/2001, s 54(2).

202. Rice, supra note 6 at 17.

203. 2007 CarswellOnt 2493 (WL Can) at para 7 (SC).

204. Waller, supra note 190 at 277.

205. Ibid at 277-78.

206. 2018 NBQB 9.

207. Ibid at paras 47-48.

208. Hemsworth, "Carceral Acoustemologies," supra note 5 at 27. See also Michael Bull, Sounding Out the City: Personal Stereos and the Management of Everyday Life (Berg, 2000) (the touchstone for all contemporary studies of personal soundscape management).

209. Rice, supra note 6 at 15.

210. Supra note 6.

211. "Carceral Acoustemologies," supra note 5 at 27.

212. Ibid.

213. Including pleading guilty to assaulting his then common-law wife. 2004 PSSRB 74 at paras 2, 85.

214. Ibid at para 84.

215. Ibid at para 174.

216. Ibid at para 175.

217. Ibid at paras 133-35, 201.

218. Ibid at para 129.

219. Ibid.

220. Supra note 169 at 234.

221. Gina Dent, "Stranger Inside and Out: Black Subjectivity in the Women-in-Prison Film" [unpublished], cited in AY Davis, supra note 55 at 17-18.

222. Supra note 169 at 234.

223. Dominique Moran, "'Doing Time' in Carceral Space: Timespace and Carceral Geography" (2012) 94 Geografiska Annaler: Series B, Human Geography 305 at 313. https://doi.org/10.1111/geob.12000

224. Hemsworth et al, "Earwitnessing," supra note 23 at 148.

225. "Counter-Carceral Acoustemologies," supra note 19 at 308.

226. "Prisoner Litigation," supra note 8 at 178.

227. Ibid at 179.

228. Ibid at 183.

229. Ibid.

230. "The Visual Retreat of the Prison" in Michelle Brown & Eamonn Carrabine, eds, Routledge International Handbook of Visual Criminology (Routledge, 2017) 293 at 303. https://doi.org/10.4324/9781315713281-23

231. AY Davis, supra note 55 at 19.