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Letter to Hon. Doug Downey, Attorney General of Ontario

Campaign for the Abolition of Solitary Confinement

June 1, 2020

Sent by email to: Hon. Doug Downey

Attorney General of Ontario Dear Mr. Attorney:

Re: Solitary Confinement

Now that Ontario is gradually returning to normal activities, we wish to raise with you our concerns, widely shared by the public, on the continued use of solitary confinement in corrections. Our aim is abolition, but we would hope to see major reforms achieved even short of that goal. We expect that the gross over-representation of Indigenous persons in solitary (already over-represented in the prison population) will not be curtailed short of legislation to abolish solitary.

You are undoubtedly aware that the federal government has abandoned its appeals on two major decisions on solitary. This means that the ruling of the Ontario Court of Appeal, written by Justice Benotto, stands, that for solitary over 15 days, legislative standards are inadequate, and that the risk of harm “outrages standards of decency and amounts to cruel and unusual punishment.” While, technically this is a decision regarding federal institutions, our understanding is that all jurisdictions are effectively bound by it.

The Supreme Court of Canada had agreed to hear this and the B.C. appeal on (Leask). This, we expected, would result in a concerted denunciation of solitary, at least over 15 days. To avoid this embarrassment, the federal government withdrew, using the excuse of effectively abolishing the use of solitary in federal prisons by the establishment of “structured intervention units.” This approach, through Bill C-83, is now in force and its effects are not yet known. We would predict that suicides and self-harm will decrease with its use, but we share the skepticism of many experts on corrections, that this is more of a cosmetic name change, with loopholes, than a full-scale elimination of the practice. Firm limits are lacking.

Second, you are doubtless also aware of the recent legislation adopted by Yukon, to limit solitary by law to 15 days. If you decide to draw up a new act for Ontario, we would urge you to include a ban on the use of solitary for inmates with psychiatric illness, pregnant women and those who have recently given birth, inmates with physical disabilities and the young (under 25 – those who suffer the worst long-term consequences from solitary). A limit of 10 days initially, to drop to five, would be better than 15 days, a

number not based on any evidence that it is adequate to avoid harmful consequences. However, the 15-day limit now is, in effect, the law for all jurisdictions. It is hard to imagine any court deciding that prolonged solitary would be permissible in a provincial or territorial prison, though not in a federal one.

Third, courts are increasingly making judgments against governments for their use of solitary. Ontario Superior Court Justice Perrell upheld a class-action suit, awarding $20 million in damages, citing the devastating psychological consequences. While this was a suit against Corrections Canada, provinces could be sued in a similar fashion. Perrell’s decision showed contempt for the excuses made for solitary. He referred to it as “a dungeon inside a prison.”

Ontario has been the venue for some flagrant examples of solitary confinement, such as Christina Jahn, who was held in solitary for over 200 days, denied treatment for cancer, and died of cancer (damages awarded later); Adam Capay, an Indigenous man eventually released after being held without trial on a charge of murder, so damaged the judge ruled that he could not be tried; and Soleiman Faqiri, who died in a provincial prison on remand on day 11 in solitary, whose family is suing the Ontario government.

Relevant data are needed. We respectfully ask that you provide annual or the most recent reports of the number incarcerated, male and female, for Ontario, the number placed in solitary, and number of days. Specifics are needed for Indigenous persons and inmates of colour (both are known to be over-represented). Clearly, to track progress, firm numbers are needed.

We look forward to your response. Sincerely,

Harry W. Arthurs Pauline Couture Phyllis Creighton John Godfrey Myim Baken Kline Patrick Lesage Lynn McDonald Ian Morrison

On behalf of the Campaign Please respond to:

cc: Hon. Sylvia Jones, Solicitor General of Ontario,