To Ralph Goodale and Members of Parliament

Solitary confinement: harm reduction is better than nothing, but not good enough

We are pleased to see the announcement of the Hon Ralph Goodale, Minister of Public Safety, that new legislation (Bill C-56) will be introduced this fall to limit, albeit with serious exceptions, the use of solitary confinement in federal prisons. The proposed limit of 21 days (later to be reduced to 15 days) will prevent some suicides and some mental deterioration, but why not do the job better?

The proposal falls far short of UN recommendations, which include a 60-day limit in solitary in any year, as well as the 15-days per stay. Ignored is the warning that scientific studies “have established that some lasting mental damage is caused after a few days of social isolation” (Juan E. Mendez. UN Rapporteur, 18 October 2011).

Bill C-56, as proposed, will still leave an enormous amount of discretion in the hands of wardens and the Commissioner of Corrections. A former director of Corrections Canada, Mary Campbell, called the bill “very thin,” the minimum to say “they did something.”

Mr Goodale is quoted as saying that, on mental health problems, “you don’t solve that problem by confining them to administrative segregation. In fact, that probably makes the problem worse.” Actually, there is abundant evidence that even short stays (as low as 48 hours) cause harm.

The purpose of our prison system, at every level, is rehabilitation and reintegration into society, as Mr Goodale himself acknowledges. His proposals fall short of the reforms accepted by the Ontario government, based on the report of Howard Sapers, former federal Correctional Investigator. These, too, fall short of the reform we seek, the virtual abolition of solitary (only very brief use, in dangerous situations, while other plans are being made).

We urge the minister to look at the progress made in other jurisdictions to reduce, radically, the use of solitary, and eliminate it completely for some categories of prisoner.

Solitary confinement is the last barbaric element of our prison system. Like slavery and child labour — acceptable practices in the past — it should go. No inmate is improved in solitary, no prison made safer by its use.

Yours sincerely
[ 12 members of the Campaign for the Abolition of Solitary Confinement ]

To the Globe and Mail, 9 June 2017: “Ban Solitary Outright”

The Globe and Mail June 9 2017

Your editorial clearly sets out the inconsistencies, hypocrisy and injustices of solitary confinement. We agree with it also in its support for Howard Sapers’s recommendations for excluding the mentally ill and juveniles. However, his recommended cap on solitary (15 days at a time, 60 days total in a year) is based on a UN Report of 2011, which itself was a compromise. Evidence continues to mount that solitary causes harm even in shorter stays.

Independent oversight would be better than the current wide-open discretion accorded prison managers. You call for “getting those minimum standards right” and insist that legislation is needed – we concur. However, the “right” maximum stay, if we go by evidence of harm, which we should, would be under 48 hours. Better to look at other places which have made the move to virtual abolition.

Flogging, which society now finds abhorrent, was once acceptable, too. The time has come to ban solitary confinement.

Mary Boyce, lawyer
Paul Copeland, CM, LLB
Canon Phyllis Creighton, OOnt, MA, editor
Hon Norman Dyson, QC
Ronald Hinch, PhD, professor emeritus of criminology
Hon Keith Hoilett
Lynn McDonald, CM, PhD, LLD (hon) professor emerita

To Marie-France Lalonde, MPP, Minister of Community Safety, Ontario

Marie-France Lalonde, MPP
Minister of Community Safety and Correctional Services

Dear Ms Lalonde

We were pleased when the premier appointed Howard Sapers to conduct a long-needed inquiry into the use of solitary confinement in Ontario prisons. We consider that Mr Sapers’s 63 recommendations go far in addressing the worst aspects of solitary confinement as currently practised (notably the ban on its use for juveniles, pregnant women and the mentally ill). We concur that independent oversight would be better than the wide-open discretion prison authorities currently have in imposing, and continuing, solitary confinement.

However, we believe the time has come to go further: to abolish the use of solitary as a barbaric relic of a previous time. It was originally instituted on the theory that it would promote self-reflection and reform. Instead, it made inmates mad. It continues to, and to provoke self-harm, attempted suicide and suicide.

For “disciplinary segregation” the case is obvious: abolition. Criminal penalties for serious infractions in a penal institution are available, or loss of privileges for the less serious.

“Administrative segregation” is more complicated. For inmates on remand there is no justification for the punitive aspects, the extreme deprivation, of segregation. Some kind of protective custody, with measures to ensure social contact and exercise must be provided. Protective custody for vulnerable inmates will also require creative measures to ensure adequate social contact for health. Segregation should not be used for those who self-harm or attempt or threaten suicide, matters for psychiatric care.

(B) segregation to protect staff and other inmates from harm: again abolition will require significant changes in building, staffing and programs. There are positive examples in other places that should be considered. We urge Ontario to be bold in looking at alternatives.

Reforms such as independent oversight do not go far enough. Independent oversight for slavery? Flogging? Fewer strokes of the paddle? We say the time has come, as it did for those barbaric practices, to abolish solitary confinement, under whatever name.

Sincerely yours

Mary Boyce, lawyer
Paul Copeland, CM, LLB
Canon Phyllis Creighton, OOnt, MA, editor
Hon Norman Dyson, QC
Ronald Hinch, PhD, professor emeritus of criminology
Hon Keith Hoilett
Lynn McDonald, CM, PhD, LLD (hon) professor emerita

To Hon. Ralph Goodale MP, Minister of Public Safety (with reply)

Hon Ralph Goodale, MP
June 7, 2017

Dear Mr Goodale

We are pleased to see Correctional Services Canada conferring with equivalent provincial jurisdictions on reforming solitary confinement. We will not repeat the reasons for reform being needed at all levels – they are well known.

Our point is to call for adequate reform – the abolition of solitary confinement – not merely the caps proposed by Howard Sapers (following the UN report of 2011) and other safeguards (albeit better than the status quo).

Our prison system, at all levels, has rehabilitation as its goal; most prisoners will get out and their time inside should help prepare them for it, not worsen their condition, if mentally ill, or push them into self-harm or suicide. That First Nations persons and blacks are consistently over-represented in solitary confinement (as they are in prisons generally) is yet another reason for concern.

Solitary confinement, or segregation, or whatever the euphemism is for it, as you know is largely the same in practice, while the legal justification for it varies by type:

  1. Disciplinary segregation: the case for abolition is clear. Criminal penalties for serious infractions in a penal institution are available, or loss of privileges for the less serious.
    Like flogging, the paddle and the bread-and-water diet, the time has come to abolish solitary confinement, not try to improve it. Charitable, monitored slavery? Flogging? We wonder.
  2. Administrative segregation
    1. as protective custody for vulnerable inmates. The punitive aspects of segregation must be abolished, especially for inmates on remand; some form of protection will continue to be needed, but this should not entail the extreme sensory deprivation of isolation. Segregation should not be used either for the mentally ill or those who self-harm or attempt or threaten suicide, matters for psychiatric care.
    2. segregation to protect staff and other inmates from harm from an inmate. Abolition here will require significant changes in building, staffing and programs. There are positive examples in other places that should be considered. We urge your department to consult widely on practical alternatives.

Sincerely yours

Mary Boyce, lawyer
Paul Copeland, CM, LLB
Canon Phyllis Creighton, OOnt, MA, editor
Hon Norman Dyson, QC
Ronald Hinch, PhD, professor emeritus of criminology
Hon Keith Hoilett
Lynn McDonald, CM, PhD, LLD (hon) professor emerita

The Minister’s reply

Minister of Public Safety and Emergency Preparedness
Ministre de la Sécurité publique et de la Protection Civile
Ottawa, Canada K1A OP8

Ms. Lynn McDonald lynnmcd@uoguelph.ca

Dear Ms. McDonald and co-signatories:

Thank you for your correspondence of June 7, 2017, regarding your concerns about the use of administrative segregation in federal correctional institutions.

Our government is focused on ensuring that federal correctional institutions provide a safe and secure environment that is conducive to inmate rehabilitation, staff safety and the protection of the public. The law provides for administrative segregation in limited circumstances to help ensure the safety of all inmates, staff and visitors. However, specific legal requirements are set out in section 31 of the Corrections and Conditional Release Act (CCRA) and must be met in order to place an inmate in administrative segregation, including that there be no reasonable alternative and that the inmate be released from segregation at the earliest appropriate time.

While there has been a significant decrease in the use of administrative segregation, over the last two years, we recognize the need to reduce more, and we are working with the Correctional Service of Canada (CSC) to make further improvements and reduce the use of administrative segregation in the federal correctional system, particularly for women, Indigenous offenders and those with mental illness.

On June 19, 2017, our government introduced legislation to restrict the use of administrative segregation and strengthen Canada’s federal correctional system. Bill C-56, An Act to Amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, will create a legislative framework that establishes a presumptive time limit for inmates confined in administrative segregation. Eighteen months after the legislation comes into force, there will be a presumption that an inmate must not remain in administrative segregation longer than 15 days, subject to security and safety concerns and there being no reasonable alternative. For the eighteen months prior, the presumptive limit will be 21 days.

This legislation is part of a series of measures that include Commitments in Budget 2017 to be used to expand mental health capacity for all inmates in federal correctional facilities. In addition, funding will be used to help reverse the trend of Indigenous over-representation in Canada’s Criminal justice system and to help previously incarcerated Indigenous peoples heal, rehabilitate and find good jobs. Together these investments and this new legislation will provide support to the most vulnerable people in federal Correctional institutions.

Furthermore, in May 2017, CSC consulted extensively, including with Community, partners and stakeholders on the proposed Commissioner’s Directive (CD) 709: Administrative Segregation and CD 843: Interventions to Preserve Life and Prevent Serious Bodily Harm. CSC carefully considered all feedback while revising the CDs.

As of August 1, 2017, there are specific groups of inmates who will not be admitted to administrative segregation, as well as additional groups that are not admissible unless there are exceptional circumstances. The following inmates are not admissible to administrative segregation, and instead will be managed under CSC’s policy to preserve life and prevent serious bodily harm:

  • inmates with a serious mental illness with significant impairment, including inmates who are certified in accordance with the relevant provincial/territorial legislation;
  • inmates actively engaging in self-injury which is deemed likely to result in serious bodily harm; and
  • inmates at elevated or imminent risk for Suicide.

In addition, the conditions of confinement in administrative segregation will ensure the allowance of essential items upon admission, personal property within 24 hours, daily showers, and a minimum of two hours daily outside of the inmate’s Cell.

We recognize that the use of administrative segregation and the treatment of those with mental health issues are complex challenges that require careful Consideration.

Thank you again for taking the time to write.

Yours sincerely,

[ signed ]
The Honourable Ralph Goodale, P.C., M.P.