(as submitted to the Standing Committee on Justice of the Ontario Legislative Assembly, April 2018)
The Campaign for the Abolition of Solitary Confinement commends the Government of Ontario for the many improvements evident in Bill 6: the “transformation” claim is appropriate. Our critical remarks are confined to Parts V and VI on solitary confinement, under whatever name, segregation or restrictive placements.
These provisions, when enacted, will likely result in fewer suicides and attempts, less self-harm and mental deterioration, but it must be expected that all these will continue, for the harm of solitary confinement does not begin at 16 days. On solitary confinement, Bill 6 amounts to harm reduction, not transformation.
A prison sentence does not justify practices that harm health, as the sensory deprivation entailed in solitary confinement does. Meaningful human contact is essential. Human beings also need fresh air, sunlight, exercise, nutrition and sleep to remain in or regain health. We were pleased to see specification for these physical requirements (fresh air, etc.). Lack of meaningful human contact is no less, and probably more, harmful to health.
Bill 6 gives great attention to the details of improving the administration of solitary, to prevent flagrant abuses. It seems to have ignored some basic facts:
- There is substantial evidence, from many countries and over a long period of time, that the harm of solitary begins with only a couple of days. The contention that it is only lengthy or indefinite solitary that is harmful has been argued in Canadian courts, but not accepted in recent court rulings (2017 ONSC7491 and 2018 BCSC62; and see Bailey Fox, “You are not Alone: Ontario and British Columbia Invalidate Solitary Confinement,” Court.ca February 6 2018).
- The “Mandela Rules” were named after Nelson Mandela, who was made an honorary citizen of Canada, but he never sanctioned them. He described the horrors of solitary, without ever specifying that a limit of 15 days would prevent them.
- The UN Special Rapporteur who gave 15-days as the cut-off for solitary to constitute “torture” specified that harm can begin after as little as 48 hours (UN Special rapporteur Juan E. Mendez, 18 October 2011). Why should Ontario’s aim be only the prevention of torture?
- There is no evidence to show that any type of inmate (or person) benefits from solitary confinement.
- Human beings are social beings and require meaningful human contact to be healthy. Yet there is no provision in Bill 6 to ensure meaningful human contact. We note that the Irish Prison Reform Trust, which advocates the abolition of solitary confinement, calls for, as an intermediate measure, out-of-cell time of 8 hours for those in “restrictive regimes,” 12 hours out-of-cell time as the ultimate target for all prisoners (Behind the Door: Solitary Confinement in the Irish Penal System. By Irish Penal Reform Trust. February 2 2018).
- The fact that solitary confinement is used as a punishment, “disciplinary segregation,” is a clear admission that it is by its nature punitive, and not only for long or indefinite stays.
Monitoring: we recommend that the ministry publish comparative data both on patterns of use of solitary, number of inmates at what terms, type of inmate in solitary (notably Indigenous) and harms (suicides, attempts, self-harm, mental deterioration), to permit comparisons before and after implementation of the legislation. Data should be provided distinctly for disciplinary and non-disciplinary solitary.
Section 55 (1) provides for at least two visits per week, an improvement, but this falls far short of ensuring adequate meaningful human contact. We welcome the specific exclusion of communication through meal hatches counting as visits, in Section 63 (1) (b).
Section 57 (1) specifies that inmates in segregation retain all rights and privileges of inmates in the general population, except those that cannot be because of their confinement. It is well known that inmates in solitary in practice lose access to educational and rehabilitation programs. How will this be changed? Again, data are required to ascertain if the new wording in fact resulted in better practice.
Section 57 (3) Segregation prohibitions: we welcome the short list of exclusions from solitary: pregnant woman and those who recently gave birth; the chronically self-harming or suicidal; significant mental illness or developmental impairment or mobility problem.
We are concerned with the use of “chronically” with self-harming and suicidal. We know of no evidence that there is any cut-off in numbers of attempts. How many attempts at suicide must an inmate make before he or she is considered “chronically” suicidal?
Are Regulations intended to address this point?
Section 57 (3) (e)
We urge that another prohibition be added: any person under the age of 25. The brains of young people are still developing up to the age of 25, so that the sensory deprivation aspects of solitary are particularly harmful to the young. We note that, in considering an appropriate age of access for cannabis use, neurologists advised 25 years; that is, that the human brain is still developing up until that age.
Section 58 (1) The 15 day limit is an important improvement over existing practice, as is the 60-day maximum over a 365-day period, Section 59 (1); and the provision that an inmate’s transfer, Section 57 (4) does not constitute a break in the 60 days. However, provision is made for the superintendent to authorize longer solitary, for the same reasons as before. This provision calls for monitoring.
Section 60 Limits of non-disciplinary segregation; we note that the justification for the use of solitary uses the same language that has been inadequate for preventing abuses in the past.
Section 61 Review. The superintendent is now required to provide a written record of options that were exhausted before the decision for solitary was made, and must review, Section 61 (1). A visit is required, Section 61 (3).
We recommend that Bill 6 be amended to reduce the maximum length of stay of solitary, say, to 10 days after 3 years of operation of the bill, and to 5 days after 2 further years, to 40 days maximum for a year and then 20 days. This should apply also to disciplinary solitary, Section 74 (2).
This amendment would require also amendment of the times for review in Sections 65 and 66.
Part VI Discipline
Flogging, the paddle and bread-and-water diets were eliminated decades ago in Canada as punishments within prison. It is time for the use of solitary as a punishment to go. It contributes nothing to rehabilitation but to the contrary frequently if not always has deleterious consequences. All inmates in the Ontario prison system can be expected to be released, desirably not in worse condition than when they entered.
For the most serious offences committed in prison, criminal charges are available; for less serious loss of privileges should be the penalty.
Section 74 (2) 1. While disciplinary solitary remains on the books, we commend the provisions of Part VI to limit its terms.
Reducing the limits: We recommend that the same reduced limits proposed above for non-disciplinary solitary apply also to disciplinary. In each case it would require a new clause in the bill.