Response to Bill C-83

Written Testimony for abolishsolitary.ca
By Leilah Mouna

The conflict with this form of imprisonment lies not in finding faults in its positive attributes or disproving its fundamental purpose of rehabilitation. Rather, importance lies in proving that without doubt, the current and prolonged use of solitary confinement is morally and legally corrupt. In North America, home of liberty and human rights, over 80,000 prisoners are isolated in solitary confinement. We purposely inflict such lengthened isolation, when it has been proven to cause mental illness, physical harm, a decreased ability for inmates to become members of society again, and direct infringement against the Universal Declaration of Human Rights.

The UDHR highlights the problem of solitary confinement in Article 5. It states, “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment”.  In 2013, the UN Special Rapporteur on Torture announced that, “to keep an adult in solitary confinement for more than 15 days constitutes torture”. The prolonged use of such isolation for youth and the mentally ill is also being called for prohibition by the UN.

Still, solitary confinement under Bill C-83 can be used for prolonged periods of times. Instead, the prisoner should undergo a set period of solitary confinement but not for weeks on end, the prisoner must be trialed for some sort of improvement between stints in solitary confinement, and there should be an age restriction. Placing juveniles in solitary confinement for extended periods of time limits their ability to read, write, exercise, and receive educational programming, drug treatment or mental health services. Their brains are still developing, which puts them at a much higher risk of psychological harm when exposed to isolation.

Solitary confinement stands in stark contrast to what humanity stands for. Humans are defined as social and sympathetic beings yet we isolate prisoners (within the regular prison system) and take away their ability to develop socially or exercise sympathy in their lives. Ultimately, we are taking away their ability to be human, which in turn, makes US even less human.

Fight against systemic racism in prison wins all-party support

The Globe and Mail | Tom Cardoso, Crime and justice reporter | Janice Dickson
Published October 26, 2020

MPs from all parties on a House of Commons committee say they support studying systemic discrimination in federal prisons, including inmate risk assessments, days after a Globe and Mail investigation found these tools are biased against Indigenous and Black people.

Jack Harris, the NDP’s public safety critic, said before a meeting of the public safety committee that a study is an “extremely high” priority after he introduced a motion that calls for “immediate measures to be taken to provide expeditious redress for systemic discrimination in federal prisons, including risk assessments.” Indigenous and Black inmates are over-represented in high-security prisons, the motion says, and serve “longer incarcerations” with “limited access to programs and parole.”

Committee members met on Monday evening, but would not say whether Mr. Harris’ motion was raised or if a vote was held because it was not a public session. However, members from each party told The Globe they support studying the issue.

A Globe and Mail investigation revealed that after accounting for variables like age, offence severity and criminal history, the standardized tests were biased against Black and Indigenous men. The tests, which measure the risk that an inmate of a federal prison would pose to public safety upon release, play a significant role in determining prison placement, the programs and services inmates can access, and their chances of getting parole.

The analysis of Correctional Service of Canada (CSC) data found that Black men were almost 24 per cent more likely to end up with the worst security classification compared with white men. It also showed that Indigenous men were nearly 30 per cent more likely than white men to receive the worst score for reintegration potential. And after accounting for their reintegration scores, it found that both groups were less likely than white men to reoffend.

“We knew that there was discriminatory treatment,” Mr. Harris said. “We didn’t know the why and the how – and now that we do, there appears to be a means to seek to correct it. Someone should be stepping in.”

The Office of the Correctional Investigator estimates Indigenous and Black people account for about 30 and 10 per cent of inmates respectively, even though they represent less than 5 and 4 per cent of the Canadian population. Spokespeople for the CSC and Public Safety Minister Bill Blair have said more is needed to address systemic racism in the prison system. Mr. Blair’s spokespeople also said he would meet with Anne Kelly, the head of the CSC, to ensure inmates are assessed appropriately.

Monday evening’s committee meeting was scheduled to include a public session at which Mr. Blair was to appear with Ms. Kelly, RCMP Commissioner Brenda Lucki, David Vigneault, the director of the Canadian Security Intelligence Service, and John Ossowski, president of Canada Border Services Agency. Mr. Blair’s office said that part of the meeting was cancelled because of scheduling conflicts.

Liberal MP John McKay, chair of the public safety committee, said the issue of racism in Canada’s prisons has caught his personal interest and that of other committee members. He said he would support a study of the issue. “I think it would be worth looking into, very much worth looking into,” he said, adding that he hopes the public session is rescheduled for early next week.

Bloc Québécois member Kristina Michaud and Conservative MP Shannon Stubbs, the committee’s vice-chairs, said they support Mr. Harris’s proposal.

“When Minister Bill Blair does finally decide to appear at our committee, we plan to ask him what steps he has taken to address issues of racism in the departments and agencies that he leads,” Ms. Stubbs said in a statement.

“Our committee is currently engaged in a study looking into issues of systemic racism in law enforcement. We support the committee looking into the correctional system as well,” she said.

Senator Murray Sinclair, who led the Truth and Reconciliation Commission, said senior political and correctional leaders
must be held responsible. “I think that the Commissioner of Corrections, as well as the senior officials of each of the institutions and the [Public Safety] Minister themselves need to be held to account.”

Mr. Sinclair was a judge in Manitoba for more than two decades, and said he has witnessed the impact of risk assessments. When he was on the bench, he often recommended treatments for people he had sentenced, he said, but they were ignored after the person went through their intake risk assessments at a correctional facility.

Mr. Sinclair said CSC has long known about issues with its risk assessments.

“They’ve been promising for years to do something about bias in the intake process,” he said. “But the bias is not so much about individuals needing more training, it’s about the fact that the assessment tools that they’re using are so inappropriate.”

According to Mr. Sinclair, the CSC can’t be trusted to deal with systemic issues. “That’s been the case for years,” he said, citing the government’s slow response to recommendations of an inquiry into the 2007 death of Ashley Smith. Not much has changed, he said, and the CSC’s lack of action on assessments is no different.

The Supreme Court of Canada ruled in 2018 that the CSC had not done enough to ensure its psychological risk assessment tools were reliable for Indigenous people, and ordered it look into whether they are biased. Two years before that, the Office of the Auditor-General found that Indigenous men received the worst security-level scores more frequently than other inmates. At the time, the CSC said it would look at designing Indigenous-specific risk assessments.

A senate committee is already studying this issue. A 2019 interim report noted risk scores were a frequent point of concern for inmates and correctional experts. Senator Wanda Bernard previously told The Globe she hopes a final report will be ready in 2021.

Congratulations to Yukon

Campaign for the Abolition of Solitary Confinement | 15 January 2020

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 meet 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 to forward to the next steps.

Parts of solitary confinement replacement law to come into effect Nov. 30

Marco Vigliotti | ipolitics.ca | 21 August 2019

Penitentiaries in Canada must adopt the Liberal government’s replacement for solitary confinement in November.

Sections of a new federal law overhauling the rules for solitary confinement, known formally as administrative segregation, will come into force on Nov. 30, as dictated in an order-in-council approved by cabinet this month. They include provisions authorizing penitentiaries to establish structured intervention units (SIUs).

According to the government, inmates placed in SIUs will still retain access to health care and rehabilitative programming, and are entitled to four hours outside of their cells daily, instead of two under the current system, as well as two hours of “meaningful human contact” every day.

The order-in-council also covered sections in the legislation permitting the appointment of independent, external decision-makers, new rules on when strip searches are permitted, and the creation of health-care units in a prison.

Under the new law, the head of the correctional facility must rule on whether to keep a prisoner in an SIU after five days of their admission, and the corrections commissioner would then need to approve of keeping an inmate in an SIU 30 days after that decision and every 60 days afterwards. An external decision-maker appointed by the public safety minister would need to review an inmate’s confinement in an SIU in certain circumstances.

After a B.C. Court of Appeal ruling in June struck down indefinite use of administrative segregation, Ontario Senator Kim Pate said Senate amendments rejected by the Liberals to the new legislation would have ensured it would survive a similar legal challenge because it would have required the Correctional Service of Canada (CSC) to apply to a superior court in order to keep a prisoner in isolation for more than 48 hours.

However, the Liberals countered that the ruling didn’t make any findings about the constitutionality of the new law, with the ruling specifically mentioning the legislation was not before the court and it would abolish administrative segregation.

In a statement after the legislation received royal assent in June, Public Safety Minister Ralph Goodale said the federal government will introduce a “regulatory package” to help implement the act that will establish processes to “provide procedural fairness to inmates, clarify roles and responsibilities, and ensure an open and transparent approach to decisionmaking.”
Infrastructure changes and hiring of staff to implement the bill, he said at the time, are expected to be completed by November, with provisions repealing administrative segregation and introducing SIUs also expected to “be in force by this time.”
Scott Bardsley, a spokesperson for Goodale, told iPolitics the government is “looking forward to announcing the Implementation Advisory Panel and Independent External Decision-Makers … in the near future.”

The Liberals also claim that the new law will also increase mental health services and Indigenous supports in the correctional space, while bolstering independent oversight of Canada’s correctional system.

Inmates are placed under administrative segregation generally when they are seen as a threat to others in the institution or their safety could be threatened by associating with other inmates.

Calls for reforms grew after 19-year-old Ashley Smith died by suicide in 2007 after spending over 1,000 days in solitary confinement.

Federal correctional investigator Ivan Zinger said the Canadian Corrections Services almost halved the number of inmates in administrative segregation over the past seven years, dropping from 710 in 2011 to 341 in 2018.

However, he warned in an interview with iPolitics last fall that the government’s replacement could lead to more prisoners landing in “segregation-lite” conditions.

Inmates who have been put into transitional units, secure units or special-needs units have a “very restrictive routine,” along with lengthy times spent in the cell, Zinger said, cautioning that the new law is a “widening of the net of those restrictive environments.”

“There’s no procedural safeguard,” he argued.

“We may end up with a regime that touches more people and that is very restrictive.”

The legislation was passed by the Senate in the spring after the addition of several late-stage amendments.

Among the changes approved by the governing Liberals were requiring a mental health assessment of all inmates within 30 days of admission into federal custody and within 24 hours of being moved to an SIU, and rearranging a section of the bill to emphasize the possibility of transferring inmates to outside hospitals.

* The first sentence in the story has been changed to clarify that work is already underway at penitentiaries to adhere to the new corrections law.

MPP introduces bill to end solitary confinement in Ontario

CBC News · Posted: May 09, 2019 4:00 AM ET

An Ottawa MPP is introducing a private member’s bill designed to gradually eliminate the use of solitary confinement in Ontario’s correctional institutions.

Ottawa-Vanier MPP Nathalie Des Rosiers wants to create a five-year plan to gradually phase out the practice.

Before that happens, her bill, if passed, would also prohibit inmates from spending more than 60 days a year in solitary confinement, require medical staff to provide daily care to those inmates, and create an independent oversight body that would oversee the use of solitary confinement.

At a news conference Wednesday at Queen’s Park, Des Rosiers said prison inmates should pay their debt to society — but not at the expense of their potential for rehabilitation.

“This aspiration is fundamentally at odds with our continued unconstitutional use of prolonged solitary confinement,” Des Rosiers said.

“Far from the spirit of rehabilitation, solitary confinement needlessly damages people, makes reintegration difficult and has exacerbated the mental health crisis.”

‘Cruel and unusual’

The Liberal MPP’s bill comes approximately one month after the Ontario Court of Appeal ruled that extended solitary confinement “outrages standards of decency and amounts to cruel and unusual treatment.”

In that ruling, the province’s top court prohibited inmates from spending more than 15 days in a row in solitary confinement.

Des Rosiers said Wednesday her bill was designed to reflect the spirit of that ruling, while also going “a bit further.”

“[Solitary confinement] has been proven over and over to cause serious psychological impact,” she told CBC Radio’s All In A Day.

“And the fact that the courts have ruled it as cruel and unusual punishment expresses the way in which it’s not a practice we should keep in our toolbox.”

Violence against guards a concern

However, OPSEU Local 411, the union representing guards at the Ottawa-Carleton Detention Centre, has linked the ongoing modernization of the rules around segregation in Ontario corrections facilities to a spike in violence against guards.

Des Rosiers acknowledged those were legitimate concerns, and told All In A Day that she’d like to see the union be part of the conversation around what would replace solitary confinement.

“There are lots of avenues to create some different spaces, some ways in which people can be supported … without being locked down for 22 hours [a day],” Des Rosiers said.

“It leads to no good outcomes for them — or for our society.”

The federal government has also introduced Bill C-83, which purports to eliminate solitary confinement, but some critics have called the bill merely a cosmetic rebranding of the current situation.

The bill was adopted by the House of Commons and is now before the Senate.

It is time to end solitary confinement

Lynn McDonald | Policy Options / Options politiques | 25 July 2018

It is widely agreed that Canada’s use of solitary confinement is excessive, in both federal (inmates with sentences of two years or more) and provincial prisons (under two years). I choose to use the term “solitary confinement,” although prison authorities prefer the more innocuous “administrative segregation.” Solitary confinement entails lack of meaningful human contact and sensory deprivation. It costs lives (40 percent of prison suicides take place in solitary), results in increased self-harm and suicide attempts, and causes or exacerbates mental illness. First Nations inmates and mentally ill prisoners are disproportionately selected. Moreover, solitary confinement does not make correctional institutions safer for staff or 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 that were launched in 2015; the Ontario case was decided in December 2017 and the British Columbia case in January 2018. The judges in both largely rejected the evidence brought by Correctional Service Canada (CSC). Yet the two decisions are under appeal.

The government has responded to rising criticism by reducing its use of solitary to roughly half of what it was three years earlier. It brought Bill C-56, An Act to Amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, to the House of Commons. It would introduce some safeguards, but with loopholes, the worst being the power given to wardens to overrule 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 former federal corrections investigator Howard Sapers to review its practices and recommend changes. It then acted promptly on his recommendations, which were both numerous and comprehensive and which featured limits and reviews on the use of solitary. Bill 6, the Correctional Services Transformation Act, 2018, passed just before the legislature was dissolved for the June 7, 2018, provincial election. What will happen now is not clear, as Progressive Conservative MPPs voted against the bill, while the NDP supported it.

The Act is based on the belief that the system can be fixed by implementing tighter rules, more reviews and better oversight by health care professionals to identify suicidal inmates and those deteriorating badly and get them out of solitary in time. But there is no evidence that such confidence in health care professionals is merited. In the tragic example of Ashley Smith, the teenager who strangled herself in her cell in 2007, it was a psychologist who decided that her repeated 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 “strict time limits and external oversight to reduce the harm of segregation on vulnerable prisoners.” The Campaign for the Abolition of Solitary Confinement calls for the abolition of solitary as a disciplinary measure and for the abolition of all versions of “administrative” segregation. The campaign has no confidence in partial measures to protect vulnerable prisoners.

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 Méndez (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. Méndez’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 court cases have been about prolonged or indefinite solitary confinement, the worst possible scenario for inmates. Some First Nations inmates have been effectively lost in the system for hundreds of days. Indigenous inmates form 26.4 percent of federal inmates, although they are under 5 percent of the population. The Indigenous Women’s Association reports that in 2015-16 Indigenous women made up “42% of the maximum security women’s population in Canada, and 50% of segregation placements.”

Black Canadians are also overrepresented both in prison and in solitary. The same applies to mentally ill inmates, 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 is rarely used.

In June 2018, Prisoners’ Legal Services of Vancouver launched a new challenge to Correctional Service Canada, in a human rights case arguing against the use of solitary for mentally ill inmates. Given the narrow definition of “seriously mentally ill” used by CSC, many inmates are in fact locked up, in solitary or observation cells, put in restraints and pepper sprayed. Observation cells, noted a First Nations inmate, are 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 the system can be fixed. The lawsuits undertaken by the Canadian Civil Liberties Association, the BC Civil Liberties Association and the John Howard Society focused on prolonged solitary; they have not argued that solitary is wrong in itself. A recently formed Coalition on Reforming Segregation in Ontario’s Correctional Institutions again assumes that limits and reviews will work, and that solitary is not in itself wrong.

But safeguards already exist, in both federal and provincial legislation; clearly they are not sufficient. 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 amount of suicides, attempted suicides, self-mutilation and mental deterioration, but we must expect that these harms will continue. The 15-day limit is based on pure supposition.

Despite overwhelming evidence, 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 prison systems are intended to be rehabilitative. Most prisoners will eventually be released into society. Solitary confinement is 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 legislative committee reviewing Bill 6, calling for full abolition while supporting the improvements in the Bill. The brief also unsuccessfully proposed an amendment to widen the ban on solitary that applies to pregnant women and nursing mothers to include inmates under 25 years old, on the grounds that their brains are still developing and that solitary could do lasting harm.

Before this campaign was launched, only one Canadian organization, the College of Family Physicians of Canada, had called for full abolition (the Elizabeth Fry Societies have called for abolition for women inmates). The time has come to end this barbaric practice forever and for all.

Lynn McDonald is professor emerita of sociology and a former member of Parliament (New Democratic Party). Her private member’s bill, the Non-smokers’ Health Act, 1988, was the first legislation in the world to establish smoke-free work and public places.

An Irish strategy for ending solitary confinement

Excerpted from ‘Behind the Door’: Solitary Confinement in the Irish Penal System. Irish Penal Reform Trust, 2018

1. Elimination of the use of solitary confinement:

1.1 The Minister for Justice and Equality should develop and consult on a Strategy for the Elimination of Solitary Confinement based upon principles of decarceration.

1.2 The Irish Prison Service should ensure, as a minimum, full compliance with the Mandela Rules and should amend its policy on ‘the elimination of solitary confinement’ (IPS, 2017) accordingly.

1.3 The Irish Prison Service should set the minimum out-of-cell time at 8 hours per day. Additionally, a target should be set of at least 12 hours’ out-of-cell time per prisoner per day, based upon meaningful human contact and access to services and activities.

1.4 The term ‘meaningful human contact’ should be defined as contact with family and peers; interactions with professionals, staff or volunteers within the prison system should not be used as a substitute for such contact.

1.5 Separation of a prisoner from others should not be permitted for reasons of punishment, but only for reasons of safety in emergency situations, and for the shortest possible period of time.

1.6 The placement in solitary confinement of adults with mental health difficulties or mental or physical disabilities should be prohibited.

1.7 The placement in solitary confinement of pregnant or breastfeeding women prisoners or mothers with babies should be prohibited.

1.8 Adequate community mental health services should be provided, including access to psychiatric beds, to ensure that no one is detained in prison who would be more appropriately accommodated in mental health facilities.

1.9 The Minister for Children and Youth Affairs should provide, as a matter of urgency, statutory rules governing detention of children. In line with the most recent Concluding Observations by the UN Committee against Torture, such rules should include an absolute prohibition of the use of solitary confinement for children.

2. Separation for reasons of protection:

2.1 The Irish Prison Service should research and develop a range of initiatives to address violence in prisons. These may include, but should not be limited to, restorative justice approaches and weapons amnesties.

2.2 The IPS should ensure all staff are trained on the impact of solitary confinement and restricted regimes as well as in conflict management techniques such as de-escalation

2.3 Prisoners being placed, or requesting to be placed, on a restricted regime for their own protection should be given information, in accessible language, about the implications of such placement including details of the restricted access to education, vocational training, association, etc.

2.4 Where a prisoner requests to be kept on protection for an extended period, this should be kept under constant review.

2.5 Special supports should be put in place to encourage prisoners to come off a restricted regime where it is assessed as safe to do so, including access to a step-down programme.

2.6 Prisoners on protection or other restricted regimes should be provided with meaningful access to work, training and education, as well as other activities and services. As far as possible this should be in association with other prisoners.

2.7 Prisoners on restricted regimes should have increased access to family contact, through telephone and visits.

2.8 The Prison Rules 2007 should be further amended to include regular examination of prisoners isolated under Rule 63 by a prison doctor. Such examination should include both physical and mental health assessment by appropriately trained medical personnel.

3. Access to justice:

3.1 There should be a mandatory notification provided to their solicitors where prisoners are placed on Rule 62 and Rule 6 3. Prisoners should also be informed that they have the right to contact their solicitor and should be given an opportunity to do so as soon as practicable.

3.2 There should be a mandatory notification to a legal representative in cases of placement in Safety Observation Cells and Close Supervision Cells, regardless of the length of time for which such placement is envisaged.

3.3 The situation of prisoners held in isolation and/or subjected to a restricted regime should continue to be afforded particular attention by the Inspector of Prisons, including through thematic inspections. The Government should provide the Office of the Inspector of Prisons with appropriate resources to enable it to fulfil its mandate in this regard.

3.4 Prisoners held in isolation and/or subjected to a restricted regime should have strengthened access to independent complaints mechanisms and should be afforded appropriate assistance to avail of those mechanisms.

4. Collection and publication of statistics:

4.1 The Irish Prison Service should regularly collect and publish data relating to the length of time prisoners spend on restricted regimes in all prisons.

4.2 Data relating to repeated and multiple placements of the same prisoner(s) on restricted regimes should be collected, in particular where such repeated placements concern prisoners with mental health difficulties and those segregated for reasons of discipline.

4.3 Separate statistics for Limerick (male) and Limerick (female) prisons, should be provided.

4.4 The Irish Prison Service should disaggregate data by other characteristics, including ethnicity, nationality, sexual orientation, and disability, to enable monitoring for potential disproportionate use of restricted regimes among particular groups.

It’s time to abolish solitary confinement

Lynn McDonald | Opinion | Canadian Centre for Policy Alternatives: The Monitor, Jan-Feb 2018

CANADA’S FEDERAL CORRECTIONAL investigator has described solitary confinement as “the most austere and depriving form of incarceration that the state can legally administer in Canada.”

However, he used the term “segregation,” the standard euphemism used in the corrections system. In reality, solitary means confinement in a very small cell, 23 hours a day, without meaningful human contact. It is the most extreme form of punishment after hanging, flogging, the paddle, and bread-and-water diets, all of which have been abolished in the prison system.

Solitary is used for several purposes in Canadian prisons: as punishment for infractions of prison rules; for the protection of staff and other inmates; and for self-protection (e.g., where an incarcerated former police officer fears attack). Suicidal and mentally ill inmates are still routinely placed in solitary, despite repeated reports showing how harmful it is for their already vulnerable state of mind.

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 and 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. The federal government has reduced its use of solitary since 2014, likely in response to recent lawsuits, and notes that assaults on prison staff have not increased. But the government still insists that solitary is needed.

Proposed reforms

Both the federal and Ontario governments have promised legislative reform.

The Ontario government commissioned Howard Sapers, a former federal correctional investigator, to conduct a review of the use of solitary in Ontario prisons. His report, which was largely excellent, recommended better oversight of solitary confinement, a 15-day time limit for inmates in solitary (and a maximum of 60 days in a year), and the exemption of pregnant women, nursing mothers and the mentally ill. The Wynne government promptly committed to implementing these recommendations.

The federal government introduced its own reforms last spring in Bill C-56. As in Ontario, the legislation would limit stays in solitary — initially to 21 days, then dropping to 15 — and sets a maximum of 90 days per year for any inmate. However, wardens will be able to override these limits under certain circumstances, a loophole that was roundly criticized, along with other contradictory elements of the law.

For example, the 15-day limit is based on a United Nations declaration that solitary confinement beyond that point is tantamount to “torture.” Why 15 days? How is it that 16 days or more is cruel and unusual punishment, even torture, while 14 or 15 days in solitary would be 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, as a recent case in Ontario appears to demonstrate.

In December 2016, Soleiman Faqiri, an Ontario inmate with schizophrenia, died in solitary after being beaten and pepper sprayed by correctional officers 11 days after his arrest. It’s not clear what prompted the officers’ entry to his cell, and no charges have been laid.

n short, the 15-day limit is a compromise measure that is not based on evidence but indeed contrary to considerable research documenting harm. There is no good reason to stick to it.

Will correctional officers be at greater risk if solitary is abolished completely? Again, there is no good research to back up this widely held claim. Some countries effectively do without solitary and some U.S. states have radically reduced its use. Correctional Service Canada, and the equivalent provincial and territorial services, should be looking at alternatives.

Support for abolition

The abolition of solitary confinement has been endorsed by the College of Family Physicians of Canada, among other organizations. Some groups 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.

Solitary confinement: abolition needed, not regulation

By Lynn McDonald in Hill Times, Ottawa, 4 December 2017, p.22

The federal government has been embarrassed into action by scandalous cases of inmates left in solitary for months or even years. It began reducing its use of solitary in 2014, to find, in a review in 2016, that there was no increase in danger to staff . Yet it continues to believe that solitary is needed. It’s not.

Senator Kim Pate’s litany of the woes of Canadian corrections is a good starting point for taking on the issue of solitary confinement (“‘Repressive’ ‘risk-aversive’ corrections system needs parliamentary oversight,” The Hill Times, Nov. 28, p. 1). What is wrong with solitary (or “segregation” in corrections lingo) has been well-known for decades. It causes harm, mental and physical, even with terms as short as a few days. The over-representation of the mentally ill and Indigenous inmates continues, despite lawsuits and coroners’ inquiries making recommendations for reform. The United Nations calls solitary over 15 days “torture,” and, in the same report, admits that the harm starts with 48 hours.

The federal response

The federal government has been embarrassed into action by scandalous cases of inmates left in solitary for months or even years. It began reducing its use of solitary in 2014, to find, in a review in 2016, that there was no increase in danger to staff. Yet it continues to believe that solitary is needed. In June 2017, it introduced a (flawed) bill to restrict the use of solitary and institute reviews. Bill C-56, as yet undebated, would limit stays initially to 21 days at a time, in 18 months to 15 days—as per the UN’s dictum. But wardens can over-ride the limit, and undoubtedly will.

Bill C-56 allows exceptions so long as the prison head provides “a written rationale” to show that release “would jeopardize the security of the institution, a person or the offender, or interfere in an ongoing investigation.”

But there is no evidence that solitary improves security, but only a widely held supposition. Indeed evidence is now available to the contrary. (Some consideration will have to be given when there is an “ongoing investigation,” say, for a new offence, but this is still no justification for the sensory deprivation aspects of the sentence.)

Bill C-56 would have “independent external reviewers” review files on inmates in for longer than 21 days at a time, or more than 90 days in the same calendar year, or in more than three times in a year.

But why “review” what should not be there in the first place? There is no category of inmate that improves in solitary. Nearly all inmates are released eventually; rehabilitation is the stated goal of all Canadian prisons, including federal penitentiaries. What, actually, will these reviewers review? Self-harm? Suicide attempts? Hallucinations? Can they predict which inmate might commit suicide if kept in? Or for how many more days one can stand before gross mental deterioration? Based on whose reports?

The prison as mental institution

The reality is that Canadian (and American and probably other) prisons are the major housers of the mentally ill. That is, the number of mentally ill persons in prison well exceeds those in psychiatric facilities. An estimated 30 per cent of Canadian inmates suffer from some mental illness.

The United Nations Committee Against Torture in 2012 urged Canada to ban solitary for the mentally ill. Its report also noted the inordinate number of deaths in custody. Suicides disprortionately occur in solitary.

As well, since neurologists warn that the brain continues to develop until age 25, there should be an absolute ban on solitary for those under 25.

Can we do it better?

Some American states have begun to reduce their use of solitary confinement— rampant in the American prison system with its “supermax” prisons. The director of the Colorado Department of Corrections argues, from its data on solitary, stated “the less you use it, the safer your facilities are.” European countries are well ahead of us in limiting solitary (two weeks in Dutch prisons).

Honouring Nelson Mandela

The Mandela Rules, which limit solitary to 15 days, are named after Nelson Mandela, who endured 27 years of prison before his release. He called solitary “the most forbidding aspect of prison life. There is no end and no beginning; there is only one’s mind, which can begin to play tricks.” Mandela was named to the Order of Canada in 1998, and made an honorary citizen in 2001. We could honour him better by abolishing solitary confinement.
Lynn McDonald, CM, PhD, LLD, is a professor emerita, and a former NDP MP from 1982-1988; she is co-founder of the (recently formed) Campaign for the Abolition of Solitary Confinement: http://www.abolishsolitary.ca.

Comment piece by Stewart Phillip in the Globe and Mail

By Stewart Phillip | The Globe and Mail, October 23, 2017
Stewart Phillip is the president of the Union of BC Indian Chiefs.

Mr. Trudeau, stop the residential school to solitary confinement pipeline

Survivors of residential schools carry trauma. But the trauma is also intergenerational: When caregivers of children are hurt by a genocidal system, the trauma is passed on to that child.

Canadian prisons are filled with people who carry the deepest of traumas from a young age. Many of the incarcerated are disproportionately Indigenous people, and about a third of all prisoners who are isolated in segregation cells are Indigenous.

Bobby Lee Worm, for example, is a young Indigenous woman who spent a total of 1,123 days in solitary confinement. There, she attempted to take her own life.

Ms. Worm was a witness against Canada in a recent lawsuit by the BC Civil Liberties Association (BCCLA) and John Howard Society challenging solitary confinement in federal prisons. She is a member of the Daystar First Nation, and her family are residential school survivors. Unfortunately for Bobby Lee, intergenerational trauma meant growing up surrounded by rampant abuse, poverty, and violence. At age 12, she ran away from home and started getting into trouble with the law.

Ms. Worm stated in her testimony: “Since childhood, my sense of being able to control my life has been shattered again and again. This feeling of powerlessness worsened during the years that I spent in segregation. While in segregation … I was literally powerless; every aspect of my every movement was controlled and under scrutiny. I felt like I had been thrown in a hole and left to rot.”

“Administrative segregation” is a vicious code term Canada uses for solitary confinement, when it takes people who are already incarcerated and further contains them in isolated cells. Right now, these decisions are made in the absence of evidence, with no independent oversight and no limits to how long someone can be kept in segregation.
Like Indigenous people, black people are also overrepresented in Canadian prisons and solitary cells. Andre Blair, for example, was once isolated for 363 days “for his own safety” because the guards said he was attacked by other prisoners. Mr. Blair testified that his own voice mattered little when decisions were made to place him in solitary: “When I objected to the allegations against me on the basis that there was no proof, the officer told me that he did not have to prove anything, it was not a court of law, and there was nothing I could do about it.”

In total, Mr. Blair has spent 637 days in solitary confinement.

According to the United Nations, prolonged solitary confinement is a form of torture. Experts agree that it worsens mental illness and increases the risk of suicide.

By keeping Indigenous people in solitary confinement, Canada inflicts new forms of trauma on those already suffering from the traumatic legacy of its own residential schools.

If Canada continues on this path, how is healing possible? How can reconciliation be realized?

Each of the witnesses who testified about their experience of isolation described the serious harms it caused them; for many, it aggravated pre-existing trauma.

“I realized that I was acting out because I had so much pain stored up inside me,” testified Bobby Lee “I understood that in order to move out of solitary … I had to contain all of my emotion. I became paranoid about how much emotion I was showing”

Canada recently responded to criticisms of its segregation practices with Bill C-56, but the proposed fix is meaningless. On paper, the bill would initially limit a person’s stay in solitary confinement to 15 days; however, prison officials could still extend the duration of the stay at their sole discretion. This bill does little more than create more paperwork in order to keep a person isolated in solitary confinement.

Justin Trudeau’s government speaks of reconciliation for past wrongs, but doesn’t seem to recognize its responsibility for the traumatic legacy it actively perpetuates within its own prisons.

If Justin Trudeau’s government truly wants to be responsible for ending the trauma Canada has inflicted and continues to inflict on Indigenous peoples, he must put forward real change, not what’s in C-56.