To Mike Farnworth and David Eby, BC government ministers

Hon Mike Farnworth, Minister of Public Safety and Solicitor General and Hon. David Eby, Attorney General, Government of British Columbia

18 January 2020

Dear Mr Farnworth and Mr Eby

We were encouraged to hear that the B.C. government is looking at the issue of solitary confinement (separate confinement), possibly by legislation, possibly by regulation. Naturally we would prefer legislation, as it is harder to undo it when put into place than regulations.

You are aware that Yukon is the first jurisdiction to legislate limits on solitary: 15 days at any one time, a 5 day space between, and a maximum of 60 days over a 365-day period. This is the same as that legislated by the Ontario government in 2018, just before the provincial election that resulted in a change of government, hence no implementation. (The NDP supported the then Liberal government’s bill, the Progressive Conservatives, now the government, opposed it.)

The Yukon legislation is a start, but we hope that BC will go further, at the very least to add a complete ban for the use of solitary for those under 25, for young people are more likely than older to suffer long-term consequences of such isolation.

We would urge you to reduce the limits, say 10 days, for a maximum of 40 days per year. You perhaps realize that the 15-day limit, the “Mandela Rules,” is not based on any evidence that 15 days is a safe limit for solitary, that harm only occurs after it. The 15 days was evidently a compromise, for jurisdictions that had not had any limits. Nelson Mandela himself never proposed anything of the kind, but he was clear that solitary confinement was soul destroying.

Yours sincerely

Harry Arthurs, OC, OONt, dean and president emeritus, York University
Ann Cameron, PhD, professor emerita of developmental psychology
Max Cameron, PhD, professor of political science, UBC
Paul Copeland, CM, LLB, life bencher
Pauline Couture, president PCA, co-CEO, BlockFilmInc.
Myim Bakan Kline, B.A., law student, University of Toronto
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Ian Morrison
Debra Parkes, Professor and Chair in Feminist Legal Studies, Allard Law School
(Very Rev.) Lois Wilson, CC, retired senator, former moderator, United Church of Canada

Please reply to contact@abolishsolitary.ca

Congratulations to Yukon

Campaign for the Abolition of Solitary Confinement | 15 January 2020

Congratulations to Yukon, the first jurisdiction in Canada to adopt firm, legislated, limits on the use of solitary confinement: 15 days, no more than 60 over a 365-day period, with a required 5 day break between any new imposition of solitary. These limits are consistent with the “Mandela rules” adopted by the United Nations.

The Yukon law also bans the use of solitary for pregnant women and those who recently gave birth, those who are suicidal, chronically self-harming or have an intellectual disability or mobility impairment that meet prescribed conditions.

We note that these measures are similar to those adopted by the previous Ontario government (under Premier Kathleen Wynne), but not implemented under the current (Doug Ford) government.

What next? The Campaign for the Abolition of Solitary Confinement looks to other provinces and territories to do at least as much. We would strongly urge that a ban on solitary for those under 25 be added to any legislation – young people can be harmed more by solitary, and as their brains are still developing, the damage can be long-term.

This is a start and we look to forward to the next steps.

Limits to solitary confinement: Letter to Yukon’s premier and justice minister

Hon. Tracy-Anne McPhee’s response can be read at the end of this letter. Please scroll to the end of the page to read the embedded letter (a PDF scan)

Hon. Sandy Silver, premier;
Hon. Tracy-Anne McPhee, Minister of Justice
2 November 2019

Dear Premier Silver and Ms McPhee
re: Limits to solitary confinement

The Campaign for the Abolition of Solitary Confinement was pleased to see your decision to put limits on the use of solitary as stated in the UN Convention. We seek full abolition, but recognize the end of prolonged solitary as an important step.

We urge you to add one further category to the list of complete exemptions (pregnant inmates, etc.), the under-25s. Medical evidence is that the harm done to young people from solitary is worse and more long lasting than for adults, as the brain is still developing. This point was raised by medical experts in the debate over the legalization of cannabis, that the harm done by its use was greater for the under-25s—a point not acted on for obvious practical reasons, but a point clearly relevant here.

We would also point out that the 15-day cap, recognized now in several courts in Canada, is not based on evidence. It was a compromise, an acceptable limit for societies not used to having any limit. Part of the “Mandela Rules,” it should also be noted that Mandela himself never stated that solitary was acceptable if kept under 15 days. He simply said how awful it was. Sadly, there have been numerous cases of suicide, and many of attempted suicide and self-harm among inmates in solitary less than 15 days.

We would, accordingly, encourage you to look at reducing the cap to 10 and 5 days as your next steps. Whether or not you do, your planned legislation should reduce the harm of solitary. We congratulate you on your leadership and look to seeing the results.

Yours sincerely

(co-signed by)

Harry Arthurs, OC, OONt, dean emeritus, Osgoode Hall, president emeritus, York University
Paul Copeland, CM, LLB, life bencher
Hon. John Godfrey, CM, DPhil, former federal Cabinet minister
Hon. Keith Hoilett, retired judge
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Very Rev. Lois Wilson, CC, retired senator, former moderator, United Church of Canada

2019-13-31_LTR_Lynn-McDonald

Parts of solitary confinement replacement law to come into effect Nov. 30

Marco Vigliotti | ipolitics.ca | 21 August 2019

Penitentiaries in Canada must adopt the Liberal government’s replacement for solitary confinement in November.

Sections of a new federal law overhauling the rules for solitary confinement, known formally as administrative segregation, will come into force on Nov. 30, as dictated in an order-in-council approved by cabinet this month. They include provisions authorizing penitentiaries to establish structured intervention units (SIUs).

According to the government, inmates placed in SIUs will still retain access to health care and rehabilitative programming, and are entitled to four hours outside of their cells daily, instead of two under the current system, as well as two hours of “meaningful human contact” every day.

The order-in-council also covered sections in the legislation permitting the appointment of independent, external decision-makers, new rules on when strip searches are permitted, and the creation of health-care units in a prison.

Under the new law, the head of the correctional facility must rule on whether to keep a prisoner in an SIU after five days of their admission, and the corrections commissioner would then need to approve of keeping an inmate in an SIU 30 days after that decision and every 60 days afterwards. An external decision-maker appointed by the public safety minister would need to review an inmate’s confinement in an SIU in certain circumstances.

After a B.C. Court of Appeal ruling in June struck down indefinite use of administrative segregation, Ontario Senator Kim Pate said Senate amendments rejected by the Liberals to the new legislation would have ensured it would survive a similar legal challenge because it would have required the Correctional Service of Canada (CSC) to apply to a superior court in order to keep a prisoner in isolation for more than 48 hours.

However, the Liberals countered that the ruling didn’t make any findings about the constitutionality of the new law, with the ruling specifically mentioning the legislation was not before the court and it would abolish administrative segregation.

In a statement after the legislation received royal assent in June, Public Safety Minister Ralph Goodale said the federal government will introduce a “regulatory package” to help implement the act that will establish processes to “provide procedural fairness to inmates, clarify roles and responsibilities, and ensure an open and transparent approach to decisionmaking.”
Infrastructure changes and hiring of staff to implement the bill, he said at the time, are expected to be completed by November, with provisions repealing administrative segregation and introducing SIUs also expected to “be in force by this time.”
Scott Bardsley, a spokesperson for Goodale, told iPolitics the government is “looking forward to announcing the Implementation Advisory Panel and Independent External Decision-Makers … in the near future.”

The Liberals also claim that the new law will also increase mental health services and Indigenous supports in the correctional space, while bolstering independent oversight of Canada’s correctional system.

Inmates are placed under administrative segregation generally when they are seen as a threat to others in the institution or their safety could be threatened by associating with other inmates.

Calls for reforms grew after 19-year-old Ashley Smith died by suicide in 2007 after spending over 1,000 days in solitary confinement.

Federal correctional investigator Ivan Zinger said the Canadian Corrections Services almost halved the number of inmates in administrative segregation over the past seven years, dropping from 710 in 2011 to 341 in 2018.

However, he warned in an interview with iPolitics last fall that the government’s replacement could lead to more prisoners landing in “segregation-lite” conditions.

Inmates who have been put into transitional units, secure units or special-needs units have a “very restrictive routine,” along with lengthy times spent in the cell, Zinger said, cautioning that the new law is a “widening of the net of those restrictive environments.”

“There’s no procedural safeguard,” he argued.

“We may end up with a regime that touches more people and that is very restrictive.”

The legislation was passed by the Senate in the spring after the addition of several late-stage amendments.

Among the changes approved by the governing Liberals were requiring a mental health assessment of all inmates within 30 days of admission into federal custody and within 24 hours of being moved to an SIU, and rearranging a section of the bill to emphasize the possibility of transferring inmates to outside hospitals.

* The first sentence in the story has been changed to clarify that work is already underway at penitentiaries to adhere to the new corrections law.

MPP introduces bill to end solitary confinement in Ontario

CBC News · Posted: May 09, 2019 4:00 AM ET

An Ottawa MPP is introducing a private member’s bill designed to gradually eliminate the use of solitary confinement in Ontario’s correctional institutions.

Ottawa-Vanier MPP Nathalie Des Rosiers wants to create a five-year plan to gradually phase out the practice.

Before that happens, her bill, if passed, would also prohibit inmates from spending more than 60 days a year in solitary confinement, require medical staff to provide daily care to those inmates, and create an independent oversight body that would oversee the use of solitary confinement.

At a news conference Wednesday at Queen’s Park, Des Rosiers said prison inmates should pay their debt to society — but not at the expense of their potential for rehabilitation.

“This aspiration is fundamentally at odds with our continued unconstitutional use of prolonged solitary confinement,” Des Rosiers said.

“Far from the spirit of rehabilitation, solitary confinement needlessly damages people, makes reintegration difficult and has exacerbated the mental health crisis.”

‘Cruel and unusual’

The Liberal MPP’s bill comes approximately one month after the Ontario Court of Appeal ruled that extended solitary confinement “outrages standards of decency and amounts to cruel and unusual treatment.”

In that ruling, the province’s top court prohibited inmates from spending more than 15 days in a row in solitary confinement.

Des Rosiers said Wednesday her bill was designed to reflect the spirit of that ruling, while also going “a bit further.”

“[Solitary confinement] has been proven over and over to cause serious psychological impact,” she told CBC Radio’s All In A Day.

“And the fact that the courts have ruled it as cruel and unusual punishment expresses the way in which it’s not a practice we should keep in our toolbox.”

Violence against guards a concern

However, OPSEU Local 411, the union representing guards at the Ottawa-Carleton Detention Centre, has linked the ongoing modernization of the rules around segregation in Ontario corrections facilities to a spike in violence against guards.

Des Rosiers acknowledged those were legitimate concerns, and told All In A Day that she’d like to see the union be part of the conversation around what would replace solitary confinement.

“There are lots of avenues to create some different spaces, some ways in which people can be supported … without being locked down for 22 hours [a day],” Des Rosiers said.

“It leads to no good outcomes for them — or for our society.”

The federal government has also introduced Bill C-83, which purports to eliminate solitary confinement, but some critics have called the bill merely a cosmetic rebranding of the current situation.

The bill was adopted by the House of Commons and is now before the Senate.

To Sylvia Jones, minister of correctional services (Ontario)

Hon. Sylvia Jones MPP
Minister of Community Safety and Correctional Services
February 27, 2019

Dear Ms Jones

We heartily endorse the call by Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, to end solitary confinement in Ontario.

Since its inception in 2016, our organization has endorsed abolition. We do not see that partial measures will eliminate the horrendous injustices that occur. The over-representation of Indigenous inmates (already over-represented in the prison population), and use of solitary with the mentally ill and young have been known about for decades.

Solitary should not be treated as a politically partisan matter. These cases (Ashley Smith and Adam Capay and too many others) have occurred under both Liberal and P.C. governments.

The previous government saw to the adoption of new legislation, which has the prospect of reducing suicides, attempted suicides, and mental illness (new and exacerbated). However, as the Capay case has shown, provisions for reviewing cases can easily be ignored. In the tragic Ashley Smith case (her original offence: throwing crabapples at a postman), it was a trained psychologist who directed correctional officers not to enter her (solitary) cell and stop her from committing suicide.

Neither health care practitioners nor reviewers of cases have shown the necessary ability to detect which inmates might commit suicide and intervene.

The statistics contained in the Fegeau decision on Capay are disturbing: a substantial number of Ontario cases beyond the 15-day limit that the United Nations terms “torture.” The evidence of long-term harm and increased recidivism from solitary also point to the need for abolition.

Short of immediate abolition, we suggest that significant improvements could be made by:

  • its complete elimination for young people under 25, whose developing brains are more severely impacted by solitary; we note that a number of American jurisdictions have done this;
  • its complete elimination for pregnant women and nursing mothers.
  • immediate imposition of a 10-day limit on solitary, to be amended to 5 days at a fixed time.

Details that have appeared in the Capay material suggest the need for better training of correctional officers. We propose that the province encourage the establishment of college certificate courses for correctional officers–not given by the Ministry–but recognized by the Ministry with a higher rate of pay and rank.

Yours sincerely

Christopher Adamson, PhD, sociologist
Helen Breslauer, PhD, sociologist (retired)
Phyllis Creighton, OOnt, MA, editor
Paul Copeland, CM, LLB, life bencher
Stephanie DiGiuseppe, JD, barrister and solicitor
John Godfrey, CM, PC, Dphil, former MP
Susan James, MA, international development professional
David Kilgour, JD, former prosecutor and Cabinet minister
Robert Lackey, B.A., B.Ed. (retired)
Judith McCormack, LLM, former assistant dean of law
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Dorothy Goldin Rosenberg, MES, PhD, lecturer
Frans Schryer, PhD, professor emeritus
Bev Swerling, M.A., guidance counsellor
Rebecca Thornhill, PhD, cardiology technician
David Walsh, MBA, real estate developer
Helen Hansen, Tim Ellis, Elina Korchagina

Please reply to info@abolishsolitary.ca

Copy to chief commissioner, OHRC

To Ralph Goodale on Bill C-83

Hon Ralph Goodale, MP
Minister of Public Safety
January 29, 2019
cc: all federal MPs

Dear Mr Goodale

We appreciated meeting with Arif Virani, MP, Parliamentary secretary to the Minister of Justice and Attorney General, and understand that he has conveyed our views to you. We urge you to redraft Bill C-83. We do not believe that it will stand the test in court, and have every reason to believe that civil liberties organizations will take you to court on it.

Yes, four hours out of cell sounds a lot better than one or two, and should reduce the number of suicides, attempts, mental deterioration and self harm that typically result from solitary confinement. However, there is no evidence that four hours is a safe limit. Nor can we expect that inmates will get it: lockdowns are frequent and result in inmates not leaving their cells at all, even for an hour. We also realize that your department does not track this.

The whole “structured intervention unit” concept is a guess. Who has tried it? Your bill would permit any existing prison or part of a prison to be designated a “structured intervention unit,” so how will it be any improvement, for mental health and rehabilitation purposes?

We strongly recommend that you, instead, work on measures known to help: reduce the numbers sent to solitary (you have done this before–try more).

  • Make a firm exception for solitary for those under 25 years of age. It is known that the brains of persons under 25 are still developing, so that young inmates are liable to long-term damage from solitary.
  • Amend the classification system–no legislation required. Get rid of the “food slot” for communications. Such may be needed for extreme cases, but most inmates in solitary are not there because they are a danger to correctional officers, but because they fear harm to themselves, or have caused some kind of difficulty short of violence. Currently, to open the door of solitary cell requires the presence of 3 officers, 2 at the door, and one at a short distance away. Hardly necessary for most solitary inmates. Classify! To move an inmate in solitary requires the use of shackles–again, hardly necessary for someone who is no threat to others but fears for his own safety. Refine your regulations!
  • Better training for correctional officers. We recommend that CSC facilitate the creation of a certificate programme, to be given at a regular college, not connected with the department. However, this will require the department recognizing and rewarding the earning of such a certificate. Correctional officers are being called on to do more by way of rehabilitation–they need more training to do this. Current practice is rudimentary. Training is needed.

Yours sincerely

Michael Adorjan, PhD, associate professor, University of Calgary
Harry Arthurs, OC, OONt, dean and president emeritus, York University
Augustine Brannigan, professor, University of Calgary
Michael J. Bryant, LLM, executive director, CCLA
Ann Cameron, PhD, professor emerita of developmental psychology
Maxwell A. Cameron, PhD, professor of political science, UBC
Robert Clark, B,A., B.Ed., former deputy warden
Paul Copeland, CM, LLB, life bencher
Canon Phyllis Creighton, OOnt, MA, editor
Stephanie DiGiuseppe, barrister and solititor
Margaret Ferguson, B.Ed.
Catherine Fogarty, president, executive producer, Big Coat Media
Owen Gallupe, PhD, assistant professor, criminology
Hon John Godfrey, CM, former MP and Cabinet minister
Hon Keith Hoilett
David Kilgour, JD, former prosecutor and Cabinet minister
Suzette Mafuna, B.A. (hon.)
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Philip Rosen, BA, BCL, retired legal policy analyst
Susan Reid, PhD, professor of criminology, St Thomas’ University
Robert A. Stebbins, PhD, FRSC, professor emeritus
Bev Swerling, MEd, retired guidance counsellor, Toronto
Ian Wadell, QC, former MP
David Walsh, MBA, real estate developer
Andrew Woolford, professor, Dept. of Sociology and Criminology
Lois Wilson, CC, retired senator, former moderator, United Church of Canada

Comments on Bill C-83

Comments on Bill C-83, An Act to amend the Corrections and conditional Release Act and another Act, by the Campaign for the Abolition of Solitary Confinement, Paul Copeland, CM, LLB, life bencher, and Lynn McDonald, CM, PhD, LLD (hon, professor emerita.

Introduction: Members of the Campaign for the Abolition of Solitary Confinement are unconvinced of the government’s claim that “structured intervention units” will bring about the abolition of solitary confinement as claimed by the minister, or come close to that goal. The language is different, but there is nothing to ensure that the new measures (1) will be implemented properly (too many loopholes in practices, and failure to monitor); (2) even if implemented, that 2 hours of “meaningful human contact” will suffice to prevent mental deterioration, suicides and self-harm; and (3) can work without independent oversight.

The over-representation of Indigenous persons in the prison population generally, and in solitary in particular, is a continuing disgrace. We do not see this being remedied without abolition. Certainly recommendations from coroners’ reports and inquiries over the year intended to address these injustices have not been implemented.

Bill C-83’s stipulated four hours out of cell is clearly better than 1-2 hours, and should result in diminished mental deterioration, suicides, attempts, etc., but evidence is lacking that this time period (assuming it actually happens) will work. Can the minister cite examples in other jurisdictions that have used this provision and found improved results? We are aware of no evidence that being out of cell 4 hours a day is adequate to prevent the same mental deterioration, etc., and are aware of the numerous times that the out-of-cell time simply does not happen.

Pending acceptance of the abolition of solitary confinement, we recommend:

  1. The exception of inmates under 25 years of age, as people of that age, with brains still developing, are especially vulnerable to mental harm.
  2. The exception of inmates with mental illness; solitary should only be used as a temporary measure pending transfer to a health-care unit.
  3. The addition of a monitoring measure in Bill C-83 to ensure that the length of time in solitary is noted and reviewed.
  4. Amendment to preclude a “visit” entailing an inquiry of a correctional officer, or a peak through a food slot.

We see this bill as a step required by court rulings, but non adequate response to the issues of over-representation of Indigenous persons and the need to shift mentally ill inmates into treatment.

Reality check: The mandated “health care” visits conducted are not necessarily a visit. The health care worker may simply stop and ask the correctional officer on duty if any inmate has requested a meeting. If the answer is “No,” the health care person then leaves.

Reality check: Meaningful human contact for two hours a day, out of four hours out-of-cell. It is unclear how this will actually happen. CSC regards a quick exchange through a food slot to constitute “meaningful human contact.” We believe that meaningful human contact must include visual contact. The food slot approach must go. That a correctional officer or health care or other visitor must stoop down to a level like a mail slot effectively discourages visual contact. The food slot is a proven way to avoid meaningful human contact. Changes in the infrastructure are required: the mail slot/meal slot must go.

Realistic Classification. The use of solitary confinement, aka administrative segregation, is marred by the inappropriate classification of inmates. One size fits all. Hence inmates who request solitary for fear of attack are treated like inmates who have actually attacked someone or threatened to. Currently, there must be two correctional officers at the cell door whenever it is opened, and one to observe from a distance, to be able to call for assistance. This adds greatly to the cost of running solitary.

There is no reason why an inmate who is pursuing high school upgrading, who requests solitary because of a threat from another inmate, should have to give up that useful program. An inmate who can be trusted to be in a prison library, with staff and other inmates, for educational purposes should hardly need to be shackled and accompanied by two correctional officers to be moved anywhere. A dangerous inmate, yes, but why all inmates?

In fact, only about 2% of inmates in solitary are there for “disciplinary” reasons, i.e., an offence, and the use of solitary for such purposes is to end anyway under Bill C-83.

The classification system needs to be amended. This can be done short of legislation, but without such provision the current bill is inadequate.

About us: The Campaign for the Abolition of Solitary Confinement is a voluntary organization founded in 2016 to work for the complete abolition of solitary confinement in Canadian prisons, federal, provincial and territorial. Its members include law professors, criminal and immigration lawyers, retired judges, former Members of Parliament, criminologists, teachers, and university academics. See www.abolishsolitary.ca

The provisions of sections on health care professionals, advocacy services and access to recordings seem to be reasonable and we support them.

It is time to end solitary confinement

Lynn McDonald | Policy Options / Options politiques | 25 July 2018

It is widely agreed that Canada’s use of solitary confinement is excessive, in both federal (inmates with sentences of two years or more) and provincial prisons (under two years). I choose to use the term “solitary confinement,” although prison authorities prefer the more innocuous “administrative segregation.” Solitary confinement entails lack of meaningful human contact and sensory deprivation. It costs lives (40 percent of prison suicides take place in solitary), results in increased self-harm and suicide attempts, and causes or exacerbates mental illness. First Nations inmates and mentally ill prisoners are disproportionately selected. Moreover, solitary confinement does not make correctional institutions safer for staff or inmates, and the cost per inmate is higher for solitary than for the general population.

The federal government has had to answer for its use of solitary in two lawsuits that were launched in 2015; the Ontario case was decided in December 2017 and the British Columbia case in January 2018. The judges in both largely rejected the evidence brought by Correctional Service Canada (CSC). Yet the two decisions are under appeal.

The government has responded to rising criticism by reducing its use of solitary to roughly half of what it was three years earlier. It brought Bill C-56, An Act to Amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, to the House of Commons. It would introduce some safeguards, but with loopholes, the worst being the power given to wardens to overrule limits. The Bill itself is on hold (it was never debated) while the appeals are proceeding.

The Ontario government under Premier Kathleen Wynne responded more vigorously to criticism of its poor record by hiring former federal corrections investigator Howard Sapers to review its practices and recommend changes. It then acted promptly on his recommendations, which were both numerous and comprehensive and which featured limits and reviews on the use of solitary. Bill 6, the Correctional Services Transformation Act, 2018, passed just before the legislature was dissolved for the June 7, 2018, provincial election. What will happen now is not clear, as Progressive Conservative MPPs voted against the bill, while the NDP supported it.

The Act is based on the belief that the system can be fixed by implementing tighter rules, more reviews and better oversight by health care professionals to identify suicidal inmates and those deteriorating badly and get them out of solitary in time. But there is no evidence that such confidence in health care professionals is merited. In the tragic example of Ashley Smith, the teenager who strangled herself in her cell in 2007, it was a psychologist who decided that her repeated suicidal gestures were attention-getting stunts and ordered correctional officers not to enter her cell to stop her.

The Ontario Human Rights Commission in 2017 called for no less than an end to the practice of segregation, arguing for interim measures of “strict time limits and external oversight to reduce the harm of segregation on vulnerable prisoners.” The Campaign for the Abolition of Solitary Confinement calls for the abolition of solitary as a disciplinary measure and for the abolition of all versions of “administrative” segregation. The campaign has no confidence in partial measures to protect vulnerable prisoners.

How much solitary is too much?

The United Nations’ Mandela Rules, named after Nelson Mandela, who knew solitary from sad personal experience, stipulate a maximum of 15 days at a stretch. This was never Mandela’s recommendation; he is on record only as saying that he found solitary “the most forbidding aspect of prison life.” The 15-day rule seems to have been a compromise, proposed by the UN’s special rapporteur on torture, Juan Méndez (another solitary survivor), as the way to end prolonged and indefinite solitary terms. His statement that over 15 days’ solitary constitutes “torture” has been adopted by most countries. It is the cornerstone of both Canadian federal and provincial policy. Méndez’s report, however, makes it clear that the harm can start at two days, and there never has been any evidence that 15 days is in any way a valid marker.

The Canadian court cases have been about prolonged or indefinite solitary confinement, the worst possible scenario for inmates. Some First Nations inmates have been effectively lost in the system for hundreds of days. Indigenous inmates form 26.4 percent of federal inmates, although they are under 5 percent of the population. The Indigenous Women’s Association reports that in 2015-16 Indigenous women made up “42% of the maximum security women’s population in Canada, and 50% of segregation placements.”

Black Canadians are also overrepresented both in prison and in solitary. The same applies to mentally ill inmates, yet undertakings to end the use of solitary for them are routinely subverted. The definitions of “seriously mentally ill” are narrow. The preferred option of sending the mentally ill to health care agencies is rarely used.

In June 2018, Prisoners’ Legal Services of Vancouver launched a new challenge to Correctional Service Canada, in a human rights case arguing against the use of solitary for mentally ill inmates. Given the narrow definition of “seriously mentally ill” used by CSC, many inmates are in fact locked up, in solitary or observation cells, put in restraints and pepper sprayed. Observation cells, noted a First Nations inmate, are worse than ordinary segregation: stripped down to an anti-suicide smock and mattress, with constant observation and no therapy.

Can the system be fixed?

Numerous civil society organizations think the system can be fixed. The lawsuits undertaken by the Canadian Civil Liberties Association, the BC Civil Liberties Association and the John Howard Society focused on prolonged solitary; they have not argued that solitary is wrong in itself. A recently formed Coalition on Reforming Segregation in Ontario’s Correctional Institutions again assumes that limits and reviews will work, and that solitary is not in itself wrong.

But safeguards already exist, in both federal and provincial legislation; clearly they are not sufficient. Solitary is supposed to be used only as a last resort, when there is “no reasonable alternative,” and inmates are supposed to be let out “at the earliest appropriate time.” No doubt, the 15-day limits will reduce the amount of suicides, attempted suicides, self-mutilation and mental deterioration, but we must expect that these harms will continue. The 15-day limit is based on pure supposition.

Despite overwhelming evidence, few organizations geared to civil liberties or prison reform have so far opted for abolition. Canada has abolished the use of capital punishment, corporal punishment and a bread-and-water diet as deterrents to crime. Officially, all our prison systems are intended to be rehabilitative. Most prisoners will eventually be released into society. Solitary confinement is an anomaly in an otherwise relatively humane system.

The Campaign for the Abolition of Solitary Confinement was formed in May 2017, to advance the goal of abolition. It holds that lesser measures will not suffice, although limits and reviews will reduce harm and are better than the status quo. The campaign presented a brief in March 2018 to the Ontario legislative committee reviewing Bill 6, calling for full abolition while supporting the improvements in the Bill. The brief also unsuccessfully proposed an amendment to widen the ban on solitary that applies to pregnant women and nursing mothers to include inmates under 25 years old, on the grounds that their brains are still developing and that solitary could do lasting harm.

Before this campaign was launched, only one Canadian organization, the College of Family Physicians of Canada, had called for full abolition (the Elizabeth Fry Societies have called for abolition for women inmates). The time has come to end this barbaric practice forever and for all.

Lynn McDonald is professor emerita of sociology and a former member of Parliament (New Democratic Party). Her private member’s bill, the Non-smokers’ Health Act, 1988, was the first legislation in the world to establish smoke-free work and public places.