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.

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.

Dr. Ruth Elwood Martin speaks with Georgia Straight about solitary confinement

Interview with CCPHE Director Dr. Ruth Martin in a 2014 Georgia Straight article “Correctional Service Canada ignores repeated calls for reform on solitary confinement,” the third and final article in a 3-part series: