The Campaign for the Abolition of Solitary Confinement
Many experts who know the serious consequences of solitary confinement nonetheless hold out the prospect of its reform: minimal standards, independent review of cases and limits to terms. Jackson devised a detailed Model Segregation Code to ensure oversight and procedural fairness. He also discussed the argument (not advocating it) that prisons themselves should be abolished, rather than solitary confinement within them (Jackson, Prisoners of Isolation).
We can see the need to isolate inmates for short periods of time in some cases, but this means hours (24? 36? 48?), not days or weeks, pending the restoration of charges. Where criminal offences have been committed (or deemed to be), criminal penalties are available for serious culprits, the loss of privileges for less serious. Sensory deprivation should not be a penalty, or, disciplinary segregation should be abolished.
Inmates threatening suicide or self-harming should not be placed in solitary. Inmates needing protection from other inmates need protection, but again sensory deprivation should not be the price of it. As per the recommendations of Sapers, programs should be available to such inmates, and various forms of human contact facilitated, by prison visitors, family members, indigenous elders, chaplains.
The Campaign for the Abolition of Solitary Confinement is a voluntary organization, formed in May 2017, with abolition the goal, for federal, provincial and territorial prisons, adult and juvenile. Our members include academics (especially social scientists and criminologists), retired judges (current judges cannot take a partisan position), practising lawyers and former MPs.
There is wide support in Canada for the abolition of solitary confinement for juveniles, the mentally ill, pregnant women and new mothers. Most organizations concerned with civil liberties and prisoners’ welfare, however, have gone no further than to call for a ban on use for specific categories of people and limits in terms, often with judicial or other independent oversight.
Our focus for action is on the federal government, which, after prevaricating on the need for legislation at all, committed to some reforms, far short of what we recommend and what the Ontario government has agreed to do. As well, the federal Youth Criminal Justice Act should be amended by adding a prohibition of the use of solitary confinement.
The initial group consisted of 7 people:
- Paul Copeland, CM, LLB, life bencher
- Mary Boyce, LLB, barrister and solicitor
- (the late) Hon. Norman Dyson, retired judge
- Hon. Keith Hoilett, retired judge
- (the late) Canon Phyllis Creighton, MA, editor
- Ronald Hinch, PhD, professor emeritus, Sociology, University of Guelph
- Lynn McDonald, PhD, professor emerita, Sociology, University of Guelph
Other early members were:
- (the late) Ian Waddell, LLB, former MP, MLA and provincial Cabinet minister
- Harry Arthurs, CC, OOnt, Osgoode Hall Law School, former president, York University
- (Very Rev) Lois Wilson, CC, retired senator, former moderator, United Church of Canada
- Ann Cameron, PhD, professor emrita, developmental psychology
- Stephanie DiGiuseppe, barrister and solicitor
- Annamaria Enenajor, BA, MSc (Oxon), BCL, LLB, lawyer
- (the late) Hon John Godfrey,Dphil, former MP, advisor, Ontario government, climate change
- (Rev) Chris Harper, MDiv, Indigenous Native Priest, Toronto
- Judith McCormack, LLB, LLM LSM former assistant dean of law
- Mitch Moldofsy, BSc, professional development consultant
- Dorothy Goldin Rosenberg, MES, PhD, lecturer in environmental health
- Early supporters, but who did or do not attend meetings are:
- Hon. Roy McMurtry, retired Chief Justice of Ontario, former Ontario Cabinet minister
- Elizabeth May, CC, MP, leader, Green Party of Canada
- Darlene Marzari, former (NDP) MLA and Cabinet member
Solitary Confinement in Canada: Abolition Is the Better Way
by Lynn McDonald
It is widely agreed that Canada’s use of solitary confinement is excessive, both in federal (inmates with sentences of two years or more) and provincial prisons (under two years). (Note that the term “solitary confinement” is used here, although prison authorities prefer the more innocuous “segregation.”)
Solitary effectively entails lack of meaningful human contact, and general sensory deprivation. It costs lives – 40% of prison suicides take place in solitary – and results in increased self-harm, suicide attempts and exacerbated, and new, mental illness. First Nations inmates and the mentally ill are disproportionately selected. Yet the use of solitary does not make correctional institutions safer for staff or other 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, both launched in 2015, decided in December 2017, for the Ontario case, January, 2018, for the B.C. case, with judges in both largely rejecting the evidence brought by Correctional Service Canada. Yet both decisions are under appeal.
More positively, the federal government has responded to rising criticism by reducing its use of solitary, to roughly half of what it was three years earlier. It brought a bill to the House of Commons that would introduce some safeguards, but with loopholes, the worst being the power given to wardens to over-rule 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 a leading expert, Howard Sapers, from the federal system, to review its practices and recommend changes. It then acted promptly on his recommendations, which were both numerous and comprehensive, but which featured limits and reviews. The bill passed just before the Legislature was dissolved for the June 7 provincial election. What will happen now is not clear, as Progressive Conservative MPPs voted against the bill, while the NDP supported it.
The bill itself, the Correctional Services Transformation Act, 2018, is based on the belief that the system can be fixed: tighter rules, more reviews and confidence that health care professionals can identify suicidal inmates and those deteriorating badly, and get them out of solitary in time. Yet there is no evidence that such confidence is merited. In the case of Ashley Smith, the most tragic example, it was a psychologist who decided that her 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 time limits and external oversight “to reduce the harm of segregation to vulnerable inmates.”
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 Mendez (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. Mendez’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 cases taken to court have been on prolonged or indefinite solitary confinement, reasonably enough, for these are the worst: First Nations inmates effectively lost in the system for hundreds of days. Indigenous inmates form 26% of the population of federal prisons, although they are under 5% of the population; among women inmates, 50% in solitary are Indigenous Black Canadians are also over-represented both in prison at all, and in solitary.
Mentally ill inmates are also over-represented, 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 does not happen.
In June, 2018, Prisoners’ Legal Services of Vancouver launched a new challenge to Correctional Service Canada, a human rights case arguing against the use of solitary for mentally ill inmates. Given the narrow definition of “seriously mentally ill” used by Correctional Service Canada, many inmates are in fact locked up, in solitary or observation cells, put in restraints and pepper sprayed. An observation cell, observed a First Nations’ inmate, was 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 so. The lawsuits taken by the Canadian Civil Liberties Association, the B.C. Civil Liberties Association and the John Howard Society focussed on prolonged solitary, never arguing that solitary was wrong in itself. A recently-formed Coalition on Reforming segregation in Ontario’s Correctional Institutions, again, assumes that limits and reviews will work, that solitary is not in itself wrong.
Yet there are safeguards already, in both federal and provincial legislation, that clearly do not suffice. 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 number of suicides, attempted suicides, self-mutilation and mental deterioration, but we must expect that some will continue. The 15-day limit is based on pure supposition.
Yet very 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 prisons are intended to be rehabilitative. Most prisoners will eventually be released. Solitary confinement is, in short, 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 committee studying its legislation, calling for full abolition, while supporting the improvements in the bill, and proposing an amendment, unsuccessfully, to widen the ban against pregnant women and nursing mothers in solitary, to add inmates under-25, on grounds of their still-developing brains.
Only one Canadian organization prior to it, the College of Family Physicians of Canada, has called for full abolition; the Elizabeth Fry Societies have called for abolition for women inmates. We say the time has come to end this barbaric practice, for all.
Lynn McDonald, CM, PhD, LLD (hon), is professor emerita of sociology and a former MP (New Democrat).