“It’s Time to Abolish Solitary Confinement” Canadian Centre for Policy Alternatives: The Monitor (January/February 2018): online January 2 2018
Solitary confinement has been described as “the most austere and depriving form of incarceration that the state can legally administer in Canada,” except that the federal Correctional Investigator, who made the statement, called it “segregation,” the usual government euphemism. Solitary confinement is the punishment left over after the abolition of hanging flogging, the paddle, and bread-and-water diets.
Solitary is used for several, different, purposes in Canadian prisons: as punishment for infractions in prison, for the protection of staff and other inmates, and self-protection (e.g. a former police officer who fears attack). Suicidal and mentally ill inmates are still routinely placed in solitary, despite repeated reports showing how deleterious it is.
The stated purpose of incarceration, for every type of prison in Canada, is rehabilitation. Solitary confinement was originally established with “penitence” in mind (time to reflect, no bad influences), hence “penitentiaries.” Solitary, however, soon proved to make inmates mad, not rehabilitate them.
There is now a vast academic/professional literature documenting the harm of solitary confinement, augmented by reports from coroners and inquiries on particularly scandalous cases. Recommendations are made, yet little changes.
One improvement, probably motivated by recent lawsuits, the federal government has reduced its use of solitary since 2014. It subsequently found that assaults on staff did not increase as a result. But it still considers that solitary is needed.
Proposed reforms
Both the federal government and Ontario have promised legislative reform. The federal government introduced its Bill C-56 in spring, 2017. Its faults were obvious and reform advocates spoke up promptly.
The Ontario government commissioned Howard Sapers, a former federal Correctional Investigator, to conduct a review of the use of solitary in Ontario prisons. His (largely excellent) report recommended limits in terms, the exemption of pregnant women, nursing mothers and the mentally ill from solitary, and better oversight of its use. The maximum term would be 15 days at a time, 60 days for the year. The Wynne government promptly committed itself to implementation.
The federal bill would also limit stays (initially) to 21 days, then 15 days, with a maximum of 90 days per year. but it allows wardens to over-ride these limits.
The 15-day limits are based on a United Nations statement, which defined the use of solitary over 15 days as “torture.” Why 15 days? How is it that 16 days or more is cruel and unusual punishment, even torture, while 14 or 15 days are fine? Doctors have pointed out that both physical and mental harm occurs even with stays in solitary of two or three days. The UN report that recommended the 15-day limit itself acknowledged that harm occurs with as little as 48 hours.
The 15-day limit, in short, was and is a compromise measure, not based on evidence, but indeed contrary to considerable research documenting harm. There is no good reason to stick to it.
The most recent death in solitary in Canada, in October, 2017, is Soleiman Faqiri, an inmate with schizophrenia in a provincial prison. He was beaten by correctional officers who entered his cell 11 days after his arrest. What prompted the entry and attack is not clear, and no charges are to be laid. Whatever occurred, it happened under the 15-day term recommended.
Will correctional officers be at greater risk if solitary is abolished? This is widely believed, but without research support. Some countries effectively do without solitary and some American states have radically reduced its use.
Correctional Service Canada, and the equivalent provincial and territorial services, should look at the available constructive alternatives.
The abolition of solitary confinement has been endorsed by one major medical organization, the College of Family Physicians of Canada. Several organizations support abolition for women inmates, but such a law would likely result in a Charter challenge.
That solitary is disproportionately used for indigenous and black inmates and the mentally ill has prompted human rights commissions and civil rights groups to condemn it. However, the point remains that, even if applied equally to all groups, solitary is harmful.
By law, solitary confinement is supposed to be used only when there is “no reasonable alternative,” with release “at the earliest appropriate time.” The reality is that officials leave inmates in solitary for horrendous periods of time, and no one is held accountable for ensuing suicides or other consequences.
The time has come to stop the excuses, by legislating an end to solitary confinement.//
Campaign for the Abolition of Solitary Confinement
Update: 16 January 2020
Yukon takes the first step
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 meets 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 forward to the next steps.
Next meeting date for the campaign Friday, February 7, 12 noon
at 33 Lombard St., 4004
Letter to B.C. ministers
Notes for meeting January 10, 2020
Yukon: The legislation adopted by Yukon late November was discussed, including how we can use it prompt other jurisdictions into going at least that far, desirably
B.C.: Myim Bakan Kline reported on his telephone conversation with the Hon David Eby, Attorney General (and his MLA), on getting solitary abolished in B.C. The minister explained that the government is looking at changes, which could be either legislated or by regulation. The Minister of Public Safety and Solicitor General, the Hon Mike Farnworthy, is in charge. On discussion, it was agreed that we would write ministers Farnworthy and Eby on what we hope will be achieved. At the minimum, we hope to see what Yukon has legislated, plus a ban on solitary for those under 25, and a lower limit to solitary than 15 days/60 days per year. See below.
Pro-bono legal assistance, Denton’s
Ian Morrison and Pauline Couture reported on the (excellent) work done by two articling students at Denton’s, under the supervision of Catherine Coulter, a partner. We now have a thick file by province and territory, setting out the relevant legislation, with notes on legal cases for that province or territory. Most are now available, B.C. and Ontario (the most cases) still to be completed.
Letter to B.C. ministers
Hon Mike Farnworth, Minister of Public Safety and Solicitor General
and Hon. David Eby, Attorney General
Dear Mr Farnworth and Mr Eby 16 January 2020
We were encouraged to hear that the B.C. government is looking at the issue of solitary confinement (separate confinement/segregation), 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.