Solitary confinement

Latest Developments Regarding the Use of Segregation in Prisons

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged, last year the federal government passed legislation to eliminate the use of “administrative segregation” following decisions by the courts in Ontario and British Columbia, which found that placing prisoners in isolation for more than 15 days violated their rights under the Charter and was found to cause long-term psychological damage. This type of segregation, commonly referred to as solitary confinement, allowed prisoners to be isolated in their cells for more than 22 hours a day with no meaningful human contact.

The government replaced administrative segregation with “structured intervention”, which requires prisoners who need to be separated from the general prison population to receive four hours a day outside of their cells and at least two hours of meaningful human contact.

Despite the legislative changes to solitary confinement in prisons, a recent report discloses that prisoners give the structured intervention units a failing grade.

PRELIMINARY REPORT ON STRUCTURED INTERVENTION UNITS

An independent review panel, chaired by professor emeritus of criminology at the University of Toronto, Anthony Doob, appointed by the Liberal government to monitor the solitary confinement reforms released a preliminary report last month.  The results showed that nearly 50% of the structured intervention unit (“SIU”) placements lasted beyond the 15-day threshold.  Of the 1,646 prisoners placed in SIUs, less than 6% of prisoners in the new units were allowed to spend found hours outside of their cell every day.  The report stated that only 46% of prisoners had received the two hours of meaningful human contact on at least half of days in the SIUs.

According to the report, Indigenous and Black prisoners make up a disproportionate amount of prisoners being placed in SIUs.  Approximately 40% of prisoners sent to SIUs were Indigenous and 13% were Black prisoners. 

The authors wrote:

The failure to achieve the four hours out of the cell and two hours of meaningful human contact are, obviously, a special cause for concern.

Public Safety Minister Bill Blair, in response to this report, stated:

This preliminary report raises serious concerns with our progress in implementing the SIUs.  We take the findings of this report very seriously, and we won’t hesitate to address them. …

There is more work that needs to be done to address systemic racism and barriers within justice system, and the federal correctional system is no exception.  By working to eliminate these barriers, we can ensure better equitable reintegration outcomes for Indigenous, Black and other racialized inmates.

‘DRY CELLING’ VIOLATES THE CHARTER

In other news regarding prisons in Canada, a New Brunswick woman argues that “dry cell” segregation violates her rights under the Charter due to its cruelty and lack of basic legal protections

“Dry celling” occurs when an inmate suspected of concealing drugs is confined to a cell without running water or toilets so that their human waste can be examined for drugs. 

Lisa Adams (“Adams”), who was incarcerated for drug trafficking at the Nova Institution for Women, was placed in segregation due to correctional officers suspicion that she had been hiding methamphetamine in her vagina while she was outside of prison on parole.  Adams argues that a section of the Corrections and Conditional Release Act, which allows for the segregation and monitoring of prisoners for suspected drug concealment, violates the rights of Canadians guaranteed under the Charter and should be struck down.

Adams was given the choice of producing the drugs or being placed for 14 days in segregation for observation.  According to Adams, she could not provide the drugs as she was not hiding them.  After 14 days in segregation, she required medical attention for health reasons at which time she submitted to a vaginal exam.  This examination revealed that she did not have the drugs on her, however, Adams was subjected to another two days in isolation.

Adams maintains that she suffered mental anguish due to the prolonged segregation and nearly constant observation by correctional officers, even when she showered or went to the bathroom.  Furthermore, she was only allowed out in the prison yard five times and had no meaningful human contact except for a daily ten to fifteen minute visit by prison mental health staff during her isolation.

Adams argues that while in isolation her Charter rights prohibiting “cruel and unusual punishment”, the “right to life, liberty and security of the person” and her “right to be secure against unreasonable search or seizure” were violated.

The lawyer representing the federal Crown acknowledges that although Adams’ detention was unlawful as the law was not administered properly in Adams’ case, the practice of dry celling can be carried out appropriately and should not be struck down.

Justice John Keith has reserved his decision on this case. 

We will continue to follow any developments in the law regarding solitary confinement and dry celling in Canada’s prisons and will report any updates in this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison LLP at 905-404-1947 or contact us online.  We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges.  For your convenience, we offer 24-hour phone services.

Provincial and Federal Government Being Challenged on the Status of Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

As we continue to blog about the devastating effects of solitary confinement in Canada, the latest development is that the Ontario Human Rights Commission (“OHRC”) filed a motion last week with the Human Rights Tribunal of Ontario.  The OHRC is requesting an order to make Ontario accountable for failing to meet its obligation to keep prisoners with mental health conditions out of segregation.

Solitary confinement is defined by the United Nations as more than 22 hours a day in a cell with no meaningful human contact.  It is to be limited to no more than 15 days.

As we have previously blogged, last year both the courts of appeal in Ontario and British Columbia found aspects of solitary confinement to be cruel and unusual punishment and in contravention of the rights and freedoms set out in the Charter.

In 2018, the government of Ontario agreed to only use segregation for inmates with mental health disabilities as a last resort.

HUMAN RIGHTS COMMISSION HOLDS THE GOVERNMENT ACCOUNTABLE

In 2013, the Ontario government settled a human rights case with Christina Jahn, a woman with mental-health disabilities and addictions, who was placed in solitary confinement for more than 200 days.  According to the terms of the settlement, prisoners with mental health conditions would only be placed in solitary confinement as a last resort. 

According to the OHRC, 46% of the 12,000 individuals placed in segregation in Ontario prisons between July 2018 and June 2019 had mental health alerts on their files.

In fact, an Ontario judge ruled that the federal government breached prisoners’ rights and ordered it to pay $20 million to thousands of individuals who were placed in solitary confinement for long periods of time.  Many of the almost 9,000 inmates were placed in isolation since the 2013 settlement.

According to the OHRC, the government of Ontario has failed to accomplish the following:

  • to ensure that people with mental health conditions are only placed in segregation as a last resort;
  • to conduct adequate mental health screenings and reassessments to identify those with mental health conditions in custody;
  • to implement a clear definition of segregation based upon the internationally accepted standard of being isolated in a prison cell for up to 22 hours per day;
  • to implement a system to accurately track segregation placements;
  • to comply with requirements to perform internal segregation reviews and ensure that those with mental health conditions are only placed in segregation as a last resort; and
  • to establish care plans to address the individualized care needs of those with mental illnesses.

All of these problems were similarly highlighted in a report published early in 2020 by Justice David Cole who completed an independent review of Ontario’s implementation of segregation in its prisons.

The OHRC is requesting that the Human Rights Tribunal of Ontario make the following orders:

  • prohibition on segregation for individuals with mental health disabilities;
  • strict limitation on segregation placement beyond 15 continuous days and a maximum limit of 60 days in a year; and
  • the creation of an independent monitor role to provide oversight on Ontario’s correctional system.

PRISON REFORM 2019

Last year, the Liberal government passed legislation creating a new system to replace solitary confinement.  Under the new system, prisoners are to be held in structured intervention units (“SIU”), a more civilized alternative to previous solitary confinement practices, where they are guaranteed fours hours outside of their cells on a daily basis and two hours of meaningful human contact.

According to the Correctional Service of Canada (“CSC”), the new structured intervention units are operating “humanely”.  The CSC has also set up a group of independent external decision makers to oversee the conditions and duration of each prisoner’s detention in a structured intervention unit.

PUBLIC SAFETY MINISTER TO REVIVE PANEL ON ABOLITION OF SOLITARY CONFINEMENT

Public Safety Minister, Bill Blair, has promised to revitalize the Implementation Advisory Panel as its term has ended before anything was completed.  The eight member panel was created in September 2019 to monitor the progress of the new SIUs and to ensure greater transparency. 

Anthony Doob (“Doob”), a criminologist and member of the panel, maintains that the panel never received the data it had requested from the Correctional Service of Canada (“CSC”) on numerous occasions regarding how the new system to replace solitary confinement was to operate.  Requests for records regarding why inmates were sent to SIUs, how long they were detained there and whether they received the freedoms they were promised under the new legislation were never provided to the panel.

Responding to questions by The Globe and Mail, Doob stated:

How much confidence do we have that the experience of a prisoner has changed?  My answer is none, because we don’t have any information. 

Minister Blair has promised to reappoint the panel members and provide them with the data requested.  He stated:

I have spoken to …chair Dr. Anthony Doob about the panel’s serious concerns and have asked my officials to work with the chair to develop a work plan that will help ensure the panel gets the information it needs to complete its work in a timely manner.

We will continue to follow developments in the matter of solitary confinement in Canada and blog about updates as they become available.

The Oshawa criminal defence lawyers at Affleck & Barrison LLP and its predecessors have been protecting client rights since 1992.  Our skilled team has extensive experience defending a wide range of criminal charges.  Whatever the nature of your criminal offence, we can help.  Please call us today at 905-404-1947 or contact us online for a free consultation.

Ontario Judge Awards $20 Million to Inmates Placed in Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

A recent decision by a Judge of the Superior Court of Justice of Ontario has ruled that the federal government breached prisoners’ rights and will have to pay $20 million to thousands of individuals who were placed in administrative segregation for long periods of time.

WHAT IS ADMINSITRATIVE SEGREGATION?

Administrative segregation refers to the isolation of inmates for safety reasons in circumstances when authorities believe there is no reasonable alternative.  Segregation occurs when a prisoner is placed in a small cell for up to 22 hours without any human contact or programming.

Critics of administrative segregation argue that this method of isolation causes severe psychological harm and amounts to cruel and unusual punishment.

Courts in both Ontario and British Columbia have also ruled that this practice of segregating prisoners is unconstitutional.

WHO IS INVOLVED IN THIS CASE?

Julian Reddock (“Reddock”), the representative plaintiff (the individual who brings a case against another in a court of law), began his action in March 2017.  His case was certified as a class action last year.  The class comprises almost 9,000 inmates who were placed in isolation in federal penitentiaries for more than 15 days between November 1, 1992 and March 2015.  

The class action claim alleges that the Federal Government breached the inmates rights to the following under the Canadian Charter of Rights and Freedoms (“Charter“):

  • to life, liberty, and security of the person (section 7);
  • not to be arbitrarily detained (section 9);
  • not to be tried or punished again for an offence (section 11(h)); and
  • not to be subjected to cruel and unusual treatment or punishment (section 12).

The class members also bring a claim in systemic negligence against the Federal Government.

According to Reddock, he spent days without leaving his cell and never knew when he would be allowed out.  Reddock would find ways to consume anti-anxiety drugs, which he would use to knock himself out.  He testified:

All I wanted was to pass out cold for as long as possible, again and again.  It was all I could think to do to cope with the hopelessness of not knowing they would let me out.

WHAT WAS THE RULING?

Justice Paul Perell provided a lengthy written ruling, which was based upon 22,500 pages of evidence.  The ruling held that the Federal Government breached the class member’s rights to life, liberty and security of the person and to be free of cruel and unusual punishment under the Charter by placing inmates in administrative segregation for more than fifteen days.

In regards to the negligence claim made by the class members, Justice Perell also ruled that the Federal Government had a duty of care in operating and managing the federal institution.  The Judge concluded that the Federal Government’s breach of its duty of care resulted in damages to each of the class members. 

Justice Perell concluded that Correctional Service of Canada violated the inmates rights protected under Canada’s Charter due to an absence of independent oversight and the lengthy terms of segregation, which caused numerous detrimental effects including anxiety, hallucinations, delusions, panic attacks and psychosis.

Justice Perell ruled that an inmate is considered to be “cruelly and unusually treated” once the placement in administrative segregation is more than 15 days.

In his ruling, Justice Paul Perell stated:

The Correctional Service operated administrative segregation in a way that unnecessarily caused harm to the inmates.  Class members suffered harm because of a systemic failure. …Many of the administrative or disciplinary cells are very poorly maintained.  They are filthy and unsanitary.

Even if some form of segregation were necessary to ensure the safety or security of the penitentiary and its population, there never has been an explanation and hence no justification for depriving an inmate of meaningful human contact.  This form of segregation is not rationally connected to the safety of the penitentiaries.

Justice Perell awarded the class of inmates $20 million, but did not award any punitive damages.  Each inmate is entitled to $500 for each placement in administrative segregation for more than 15 days for “vindication, deterrence, and compensation”.  The individual class members have the right to pursue claims for punitive and other damages at individual issues trials, if they can prove individual harm. 

The decision in the Reddock class action case is expected to be appealed by the Federal Government.  We will continue to follow the developments in the legislation and case law regarding the legality of administrative segregation in Canada and will provide updates through this blog

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison at 905-404-1947 or contact us online.  We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges.  For your convenience, we offer 24-hour phone services.

Court of Appeal Limits Solitary Confinement to 15 Days

Written on Behalf of Affleck & Barrison LLP

As we continue to blog about the ever changing laws regarding solitary confinement in Canada, the Ontario Court of Appeal has ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment. This is the first time a Canadian court has imposed a specific time limit on solitary confinement.

WHAT HAPPENED?

The Canadian Civil Liberties Association (“CCLA”) launched the challenge of solitary confinement four years ago.

A lower court in Ontario found that solitary confinement could cause serious psychological harm to inmates, but these impairments could be avoided if staff adhered to existing laws requiring close monitoring of prisoners’ health. Justice Marrocco of the Ontario Superior Court of Justice rejected the CCLA’s argument that solitary confinement constituted cruel and unusual punishment and was in violation of Section 12 of the Charter of Rights and Freedoms.

The CCLA appealed Justice Marrocco’s decision and the case was argued before the Ontario Court of Appeal. Justice Mary Lou Benotto, writing on behalf of the three-judge panel of the Ontario Court of Appeal, ruled that the Correctional Service’s use of prolonged administrative segregation could cause permanent harm that no level of medical monitoring could prevent.

Justice Benotto stated:

Legislative safeguards are inadequate to avoid the risk of harm. In my view, this outrages standards of decency and amounts to cruel and unusual treatment.

The Appeal Court did reject the CCLA’s position that solitary confinement should be banned entirely for inmates who are 18 to 21 years of age, those with mental illness, or those in segregation for their own protection.

THE IMPACT OF THE APPEAL COURT DECISION

Michael Rosenberg, co-counsel for the CCLA, stated:

With this decision, the Court of Appeal has brought to an end a sorry chapter in the administration of Canada’s prisons. This is a significant win for the CCLA and for the administration of justice more generally.

What is most unusual about this decision is that the Court of Appeal has applied a short timeline to institute action. The Appeal Court has ruled that the 15-day cap of solitary confinement is to take effect 15 days following the decision.

Noa Mendelsohn Aviv, equality director for the CCLA, stated:

Usually, courts give governments months or a year to fix problems before a declaration of invalidity becomes active. With this short timeline, the court is saying this is enough, this is intolerable, this cannot continue.

The Correctional Service of Canada is currently reviewing the Appeal Court’s ruling. Public Safety Minister Ralph Goodale has not yet commented on the latest decision regarding solitary confinement. A spokesperson for Goodale has advised that his office is also reviewing this recent decision.

FEDERAL INMATES WIN CLASS-ACTION LAWSUIT

Last week, federal inmates were successful in their class-action lawsuit against the Correctional Service of Canada. A judge found that the practice of isolating approximately 2000 seriously mentally ill inmates breached Sections 7 and 12 of the Charter. These sections protect against arbitrary state actions and cruel and unusual punishment.

Ontario Superior Court Justice Paul Perrell has ordered the federal government to pay $20 million for placing mentally ill inmates in solitary confinement for more than 30 days involuntarily and for those who spent more than 60 days in administrative segregation voluntarily.

Justice Perrell stated:

The placement of a seriously mentally ill inmate in administrative segregation goes beyond what is necessary to achieve the genuine and legitimate aim of securing the safety of the institution. It does not accord with public standards of decency or propriety in the treatment of a mentally ill inmate.

 The funds are to remedy to the harm caused to society which has suffered from the correctional service’s failure to comply with the charter and also its failure to comply with the spirit of the Corrections and Conditional Release Act and its purpose of rehabilitating mentally ill inmates to return to society rather than worsening their capacity to do so by the harm caused by prolonged solitary confinement.

It has not yet been determined how compensation will be distributed amongst individual members of the class. Submissions to the court regarding this issue will be heard by the court at a later date where individual members of the class can put forth personal medical and prison records to make a case for damages. Those inmates who spent less than 30 days in administrative segregation will also be able to put forward claims on an individual basis.

In the meantime, Justice Perrell has ordered that $20-million be put towards mental-health resources and other programming at federal prisons, less legal fees. Therefore, the total amount for damages will be more greater than $20-million.

We will continue to follow developments in the matter of solitary confinement in Canada and blog about updates as they become available.

The Oshawa criminal defence lawyers at Affleck & Barrison LLP and its predecessors have been protecting client rights since 1992. Our skilled team has extensive experience defending a wide range of criminal charges. Whatever the nature of your criminal offence, we can help. Please call us today at 905-404-1947 or contact us online for a free consultation.

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”).

On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision.

WHAT HAPPENED?

On June 3, 2012, Capay fatally stabbed Sherman Quisses (“Quisses”) twice in the neck while they were in a correctional facility in Thunder Bay.

Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell.

Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media.

Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation.

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy.

Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services.

According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

  • The right of life, liberty and security of person (Section 7);
  • The right not to be arbitrarily detained (Section 9);
  • The right not to be subjected to cruel and unusual punishment (Section 12); and
  • The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights.

Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released.

Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

  • Failing to hold legally mandated reviews of Capay’s segregation status;
  • Advising staff to avoid talking to the inmate; and
  • Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

                        …

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario.

Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration.

The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days.

Mandhane wrote:

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates.

The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison LLP at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

Proposed Legislation to End Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

Following the Ontario and British Columbia Superior Court decisions that found that the use of segregation was unconstitutional (which we have previously blogged about), a new piece of legislation has been introduced which proposes to overhaul how federal inmates are separated from the general prison population.

Public Safety Minister Ralph Goodale has introduced Bill C-83 to amend the Corrections and Conditional Release Act. These changes would eliminate solitary confinement and replace it with “structured intervention units” (“SIUs”). The SIUs will allow inmates to be separated from the general population if they are unable to exist safely with the other prisoners.

HOW WILL SEGREGATION IN PRISONS CHANGE UNDER BILL C-83?

As it stands today, inmates placed in solitary confinement are allowed two hours a day outside of their cell, but are not entitled to any human contact. Under Bill C-83, prisoners who are found to be at risk to themselves or others will be placed in SIUs.

Prisoners placed in SIUs will have access to rehabilitative programming, interventions, and mental-health care. They will be visited daily by a registered health care professional and be provided access to patient advocates. These inmates will be given at least four hours a day outside of their cell and at least two hours a day with “meaningful” human contact.

Bill C-83 also proposes to allow staff members to use body scan imaging technology as an alternative to body cavity searches to prevent contraband from entering prisons.

Furthermore, Bill C-83 includes provisions that background and systemic factors should be considered in all correctional decisions in cases involving indigenous inmates.

Correctional Service of Canada Commissioner Anne Kelly supports the proposed legislation and stated:

I believe these legislative changes will transform the federal correctional system while ensuring that our institutions provide a safe and secure environment that is conducive to inmate rehabilitation, staff safety and the protection of the public. They will also help ensure that our correctional system continues to be progressive and takes into account the needs of a diverse offender population.

LIMITATIONS OF BILL C-83

Bill C-83 does not address the time limits for segregation or the independent oversight of segregation decisions, which are both issues that the federal correctional ombudsman and rights advocates have been lobbying for.

Furthermore, if this bill passes, this legislation will have no effect on the use of solitary confinement in all provincial jails. These jails are made up of pretrial prisoners and those inmates serving sentences of less than two years.

Goodale believes that the appeals by the Canadian Civil Liberties Association in Ontario and the federal government in B.C. with respect to the constitutionality of current policies for solitary confinement that are scheduled to begin next month will proceed. But, he is hopeful that this new legislation will address the concerns of all current policies and make further litigation regarding solitary confinement unnecessary.

CLASS ACTION LAWSUIT

A lawsuit has been certified by a Superior Court Judge as a class action lawsuit in Ontario alleging that the Ontario government violated the rights of its inmates by placing them inappropriately in solitary confinement.

The $600 million legal action alleges that the provincial government has been negligent in utilizing segregation by isolating prisoners for weeks, months or even years.

The lawsuit includes inmates diagnosed with severe mental illnesses (i.e. schizophrenia or psychosis) who served time in segregation in provincial facilities since January 1, 2009. Inmates who were placed in solitary confinement for 15 days or longer are also included in the class.

The main issue in the lawsuit is “administrative segregation”. This takes place when inmates are isolated either to ensure their own safety or for the safety of others in the facility. Inmates are kept in tiny cells without any human contact for most of the day.

Conrey Francis (“Francis”) is the representative Plaintiff for this class action lawsuit. Francis is the individual who represents the entire class in the action.

Francis has spent several periods of time in prison since 1982, and was placed in solitary confinement. Francis has been diagnosed with post-traumatic stress disorder and suffers from extreme panic attacks. Francis alleges that his time in isolation worsened his mental health and he began suffering from suicidal thoughts and auditory hallucinations.

We will continue to follow the developments of Bill C-83, the appeals regarding the rulings that administrative segregations are unconstitutional, and the class action lawsuit commenced in Ontario and will report any updates in this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison at 905-404-1947 or contact us online. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. For your convenience, we offer 24-hour phone services.

Indefinite Solitary Confinement Ruled Unconstitutional by B.C. Supreme Court

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the B.C. Supreme Court striking down sections of the Corrections and Conditional Release Act (“CCRA”) that permit prolonged and indefinite solitary confinement in federal prisons.

WHAT HAPPENED?

In this case, lawyers for the British Columbia Civil Liberties Association and the John Howard Society of Canada were asking the Court to end administrative segregation in federal penitentiaries in Canada. The Plaintiffs argued that sections 31, 32, 33 and 37 of the CCRA were unconstitutional as they infringe upon an inmate’s rights and freedoms granted by the Canadian Charter of Rights and Freedoms (“Charter”).

The Correctional Service Canada (“CSC”) procedure known as administrative segregation (similar to solitary confinement) authorizes the placement of inmates in small cells for up to 23 hours a day without meaningful human contact. This type of segregation has no legislated time limits and is left to the discretion of the warden.

The B.C. Court ruled that the laws regarding administrative segregation violate section 7 of the Charter guaranteeing life, liberty and security of person. These infringing laws allow indefinite solitary confinement, prevent independent oversight of segregation decisions and deprive inmates from having a lawyer represent them at segregation review hearings.

The Court also ruled that these laws discriminate against mentally ill and Indigenous inmates contrary to section 15 of the Charter, which guarantees equality before and under the law and equal protection and benefit of the law without discrimination.

Justice Peter Leask wrote in his decision:

I am satisfied that the law … fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

HARMFUL EFFECTS OF SEGREGATION

The B.C. Court heard extensive testimony from former prisoners, researchers and correctional officials who addressed the heath effects of administrative segregation. The Court held that solitary confinement places prisoners at significant risk of serious psychological harm and increased risk of self-harm and suicide.

Justice Leask emphasized that based on the evidence solitary confinement increases destructive symptoms and behaviours, including “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour.”

The laws pertaining to solitary confinement were found by the Court to be overbroad and damaging to institutional security. Furthermore, the Court held that the laws authorizing solitary confinement do so in circumstances where lesser forms of restriction would achieve the same results.

The Court ruled that a procedure of prisoner segregation must include time limits. Time limits would “create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns.”

International consensus has determined that 15 days is an ideal cap for segregation placements. Justice Leask did not prescribe a set number of days, but considered 15 days “a defensible standard”.

WHAT HAPPENS NEXT?

Justice Leask suspended his decision for 12 months to give the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

This B.C. decision requires broader legislative changes than the ruling made by the Ontario Superior Court last month, which we previously blogged about. In the Ontario case, the Judge held that the lack of independent review of prisoners placed in solitary confinement means that there is no accountability for the decision to segregate. Justice Marrocco put his decision on hold for a year to allow Parliament to make the legislative changes necessary. The Canadian Civil Liberties Association recently announced it would appeal this Ontario decision.

ORDER STOPPING ONTARIO FROM PLACING MENTALLY ILL INMATES IN SOLITARY CONFINEMENT

One day following this B.C. decision, Ontario announced an agreement between the Ontario government and the Human Rights Commission ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

This Order includes the process of properly identifying inmates with mental health disabilities (including those at risk of self-harm or suicide) and issuing appropriate alerts verified by professionals. The alert would indicate that alternatives to segregation must be considered for the particular inmate.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

Court Finds that Solitary Confinement Laws are Unconstitutional

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the Ontario Superior Court striking down Canada’s solitary confinement laws as unconstitutional following a three year challenge by the Canadian Civil Liberties Association (CCLA).

WHAT HAPPENED?

In the court case, lawyers for the CCLA requested a declaration that sections 31 to 37 of the Corrections and Conditional Release Act (“CCRA”), which allow the Correction Service of Canada to remove an inmate from the general population for a non-disciplinary reason, are unconstitutional as they infringe upon the rights granted in sections 7, 11(h) and 12 of the Charter of Rights and Freedoms (Charter”).

This application referred specifically to administrative segregation, the purpose of which is to maintain the security of the penitentiary and of all persons within the penitentiary. Under the current legislation, a warden is allowed to order solitary confinement when an inmate is at risk from others or poses a risk to the security of the prison. When this occurs, inmates are ordered to spend 22 hours in a cell without any meaningful human contact. There is no cap on the length of time that segregation occurs in the legislation.

Under the current legislative system, prison wardens are responsible for the initial decision to place an inmate in solitary confinement and are involved in the internal tribunal assembled five days later to study and judge that decision. Justice Marrocco found that this lack of independent review means that there is no accountability for the decision to segregate.

CURRENT SEGREGATION PROCESS IS “PROCEDURALLY UNFAIR AND CONTRARY TO THE PRINCIPLES OF FUNDAMENTAL JUSTICE”

Justice Marrocco ruled that this arbitrary and potentially biased system is improper given the severe deprivation of liberty and security of the person that takes place when an inmate is segregated. These are two rights guaranteed under section 7 of the Charter.

Justice Marrocco wrote:

I am satisfied that the statutory review of the decision to segregate is procedurally unfair and contrary to the principles of fundamental justice because the procedure chosen provides that the Institutional Head is the final decision maker for admission, maintenance and release from administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated.

However, Marrocco stated that banning the practice immediately could be disruptive and dangerous. Therefore, Justice Marrocco put his declaration on hold for a year, which he felt was a reasonable time frame to allow Parliament to address the situation.

ADDITIONAL FINDINGS BY JUSTICE MARROCCO

The CCLA argued for a 15-day limit on solitary confinements, a prohibition on the isolation of mentally ill inmates, and, a rule barring prisoners aged 18 to 21 from solitary lockups.

Regarding the effect of solitary confinement, Justice Marrocco agreed with CCLA and wrote that “placing an inmate in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects”. He, however, did not find that solitary confinement itself to be unconstitutional, even when applied to inmates aged 18 to 21 or the mentally ill. He rejected any argument that this practice amounts to cruel and unusual punishment. Justice Marrocco also refused to declare placement in solitary confinement for more than 15 days to be unconstitutional.

The CCLA launched this constitutional application shortly after the British Columbia Civil Liberties Association (BCLA) and the John Howard Society of Canada filed a similar, but unrelated, lawsuit in Vancouver. A ruling in the B.C. case is expected within the next three months.

We will continue to follow the developments in the law with regards to solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. We are here to help you 24/7.

Recommendations for Changes to Inmate Conditions in Canada

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about inmate conditions in Canada, and are now revisiting this topic in light of the recent annual report by Correctional Investigator, Ivan Zinger, submitted in Parliament on October 31, 2017.

Mr. Zinger visited numerous correctional institutions to observe and investigate the current conditions. His report outlines in detail his observations and numerous recommendations, a few of which we will discuss below.

NO THERAPEUTIC TREATMENT FACILITIES FOR FEMALE FEDERAL INMATES

Female offenders were found to be the fastest growing population in Canadian correctional facilities. Many of these inmates are struggling with serious mental illness, some of whom partake in self-injurious or suicidal behaviour.

Unfortunately there are no stand-alone treatment facilities for federal female inmates in Canada. In an emergency situation, some mentally ill women are being transferred to an all-male treatment centre to receive the help that they need. Mr. Zinger stated, “It’s just unacceptable. You do not put a woman in an all-male institution, completely isolated in segregation-like conditions.” Mr. Zinger is recommending that in cases of complex or significant mental illness, female inmates should be placed in external psychiatric hospitals.

The Correctional Service of Canada (“CSC”) responded to Mr. Zinger’s comments by stating that it proposes to put into practice that men’s treatment facilities only be used to handle mentally ill women “in emergency circumstances” and only for short periods of time. The CSC advised that it has an external expert looking into women’s mental health needs.

PROBLEMATIC USE OF SEGREGATION

The number of inmates placed in solitary confinement and the length of their stays have decreased significantly; however, Mr. Zinger reported that the conditions of segregation remain problematic. According to Mr. Zinger’s observations, some solitary confinement cells lack appropriate ventilation, windows, natural light, and he found that the outdoor segregation “yards” were bare concrete pens topped with razor wire.

There is a bill currently making its way through Parliament to address these types of issues entitled Bill C-56 An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act. This proposed legislation includes a 15-day reasonable limit on segregation stays and includes crucial improvements to conditions of confinement in segregation. Mr. Zinger promises to participate in the review process of this bill.

INABILITY TO MANAGE SERIOUS MENTAL ILLNESS

The Correctional Investigator found that the use of physical restraints, clinical seclusion, suicide watch, and segregation to manage people with serious psychological difficulties remains problematic. Placing suicidal or distressed people in observation cells that minimally provide for the necessities of life fails to recognize that confinement of this nature may promote psychological distress.

Mr. Zinger recommends that CSC review its policies and practices for the treatment of prisoners, specifically related to health care services, solitary confinement, and instruments of constraint. Furthermore, it is suggested that external psychiatric hospital placements be utilized in cases of complex or significant mental illness.

PRISON FOOD

Prison food was found to be one of the factors that triggered the Saskatchewan Penitentiary riot in December 2016. One inmate was killed and eight others were injured. Approximately 200 medium security prisoners took part in the riot, which reportedly caused $3.6 million in damage.

Expenditures for food in Canadian prisons has been decreasing. The daily cost for food apportioned to each inmate is specified at $5.41. Mr. Zinger’s report noted that there are many complaints related to portion size, quality, selection, and substitution of food items. Mr. Zinger recommends that an external audit and evaluation of CSC food services be conducted and that the inmates concerns regarding food services be heard and addressed. The audit should include comparison of ration and per diem meal costs, prior to and after introduction of the food services modernization initiative.

RECOMMENDATIONS REGARDING TATTOOING

Tattooing is a banned practice in federal institutions. However, tattooing continues to occur behind bars, resulting in sharing and reusing unsterile homemade tattooing equipment. Prohibited tattooing has been associated with higher rates of infections, including Hepatitis C and HIV. There is also the risk of infecting corrections staff when they come in contact with used needles as there is no safe means for disposal.

Mr. Zinger recommends that CSC reintroduce safe tattooing as a national program in federal institutions. This program would provide important employment opportunities for inmates while incarcerated and marketable skills upon release into the community. More importantly, this program could minimize the risk of transmission of infectious diseases.

We will continue to follow developments in this matter and blog about updates as they become available.

At Affleck & Barrison LLP in Oshawaour firm and its predecessors have been protecting client rights since 1992. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.

Recent Stats Show Marked Drop in Use of Solitary Confinement Across Canada

Written on Behalf of Affleck & Barrison LLP

We’ve regularly been blogging about prison conditions and the use of solitary confinement in correctional facilities across Canada. Today, the Globe and Mail reports that federal prisons have recorded a significant drop in the number of prisoners held in solitary confinement, following the implementation of new rules that bar certain vulnerable individuals from being put in isolation cells.

New Correctional Service of Canada Policies Introduced

Two significant Correctional Service of Canada (CSC) policies (Commissioner’s Directive 709 and Commissioner’s Directive 843) underwent major revisions, both effective August 1 of this year.

Following these changes, several categories of inmate can no longer be held in solitary confinement, including those who are imminently suicidal, self-harming, seriously mentally ill, physically disabled, terminally ill, or pregnant.

In addition, those prisoners who do end up in solitary confinement will have several new rights, including an allowance of two hours out of their cells (an increase from the one hour they were previously afforded).

These new changes come in the wake of significant public outcry over the use of solitary confinement and subsequent scrutiny of the CSC’s segregation practices. Starting in 2014, the Globe and Mail has reported extensively on the use of solitary confinement, and its effects on inmates. Following the first of these stories, the CSC launched a strategy to attempt to reduce the number of inmates housed in isolation.

In January 2015, the John Howard Society of Canada and the British Columbia Civil Liberties Association (BCCLA) sued the federal government, and in the trial that began last month in the B.C. Supreme Court, the plaintiffs argued that solitary confinement amounts to torture.

Updated Statistics on Solitary Confinement

Data obtained by the Globe and Mail shows that, as of August 2, 2017 (one day following the implementation of the new policies), the CSC held 301 inmates in “administrative segregation” (the CSC’s term for solitary confinement).

This marks a significant decrease from 399 inmates that were held in solitary confinement in June, and the average of 800 inmates three years ago.

The total number of segregation admissions has fallen from 8,522 in 2014/2015 to 6,261 in 2016/2017.

A CSC spokesperson told the Globe and Mail that the reduction of segregated inmates comes largely from the CSC’s increased efforts to divert inmates with mental-health issues to “more therapeutic environments where their needs can be addressed”. She noted further, that the impact of the amended Directives has yet to be assessed.

Reaction to the Policy Change

Despite this decrease, some observers of the prison system continue to have concerns about how these decreases were achieved, and how easily the numbers could revert back to their previous high.

The Federal Prisons Ombudsman, Ivan Zinger, who provided the data to the Globe, noted that he has some concerns, and that he is going to put a strategy in place to monitor how the policies will be applied.

Gord Robertson, the second national vice-president of the Union of Canadian Correctional Officers has said that the additional one hour inmates are able to spend outside of their cell might be “tricky” to implement. He notes that many facilities do not have the physical space to permit every inmate to have two hours of recreation time. Making this change could mean either adding staff, or building additional infrastructure to accommodate everyone.

Catherine Latimer, the Executive Director of the John Howard Society of Canada has noted that inmates complain regularly that they are being woken up when it is still dark to get “yard time”. If an inmate chooses not to go out in the early morning, they generally will not get another chance for yard time for another 24 hours.

Dr. Zinger notes that the lack of resources and staff in many facilities means that segregated inmates are often asked to take their recreation time along with other segregated inmates. This is generally not an issue, unless inmates do not feel safe spending rec time with others. If this happens, the inmate is marked as “declining exercise”.

A Step in the Right Direction

Ms. Latimer notes that barring certain groups from being held in segregation is a “step in the right direction”, but that she would rather see such measures enshrined in law, rather than in a policy. This is echoed by Dr. Zinger, who has said

Those kinds of protections should really be in legislation rather than in policy directions that can be changed rather easily.

Dr. Zinger further anticipates that as the number of inmates held in segregation continues to decline, those who remain in isolation will be the “really difficult cases”.

The Liberal government has also introduced legislative changes to segregation through Bill C-56; however, the proposed legislation does not mention any prohibitions on vulnerable groups in segregation.

We will continue to follow developments in this matter. In the meantime, if you have questions about your rights, contact the criminal lawyers at Affleck & Barrison LLP in Oshawa. Our firm and its predecessors have been protecting client’s legal rights since 1992. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.