Hon. Brian Pallister
Province of Manitoba
Winnipeg, MB R3C 0V8
November 2, 2020
Dear Premier Pallister:
Re: Solitary Confinement
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 overrepresentation of Indigenous persons in solitary (already over-represented in the prison population) will not be curtailed short of legislation to abolish solitary.
As you may know, 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. When you decide to draw up a new act for Manitoba, we 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 Perell 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. Perell’s decision showed contempt for the excuses made for solitary. He referred to it as “a dungeon inside a prison.”
As you know, Manitoba has undergone scrutiny for both its treatment of adults and youth in solitary confinement in the past several years. In 2019, investigations by the Manitoba Advocate for Children and Youth, Daphne Penrose, revealed that from September 2015 to August 2016 more than one in three youth entering custody experienced segregation. Further, more than one-third of those who entered segregation remained there for over 24 hours, and one boy was held in solitary confinement for 400 consecutive days.
Also, in 2016, nearly one in 10 adult inmates in Manitoba were held in segregation. Then in 2017, data obtained through freedom of information requests revealed that, in a provincial women’s jail, 27% of documented placements in administrative segregation were listed as for “overflow” and 32% included no documented reason whatsoever. This year we learned that youth were being held in segregation in adult cells at the Winnipeg Remand Centre as they awaited bail hearings (although this issue has since been remedied).
Finally, relevant data are needed. We ask that you provide annual or the most recent reports of the number incarcerated, male and female, for Manitoba, 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.
For reference purposes, we offer a summary of categories of data published by the Office of the Correctional Investigator, Government of Canada:
- Segregation admissions overall (voluntary and involuntary)
- Segregation admissions per individual (voluntary and involuntary)
- Length of stay in segregation
- History of self-injury among those admitted to segregation
- Number of offenders admitted to segregation at least once in a given fiscal year
- Prevalence of a history of segregation in particular populations
- Use of force incidents in segregation context
- Prevalence of segregation or segregation-like conditions to protect individuals requiring accommodations for their gender identity
- Complaints regarding segregation
- Prevalence of persons with identified mental health or ability issues in segregation
- Deaths in custody that occur in segregation
- Prevalence of youth in segregation and reason why.
We look forward to hearing from you or the appropriate Minister.
On behalf of the Campaign,
Paul Copeland CM
Myim Bakan Kline
Please respond to: firstname.lastname@example.org
cc: Hon. Cliff Cullen, Minister of Justice and Attorney General
Hon. Eileen Clark, Minister of Indigenous and Northern Relations
Wab Kinew, Leader of the Opposition
Nahanni Fontaine, Opposition Justice Critic
Ian Bushie, Opposition Critic for Indigenous Affairs