Solitary confinement

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.

B.C Inmate Tells Court About Harrowing Experience in Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

Last week we blogged about a trial that began at the B.C Supreme Court, reviewing the legality of Canada’s use of solitary confinement. The trial continues this week with testimony from inmates, including one inmate who told the court that he “felt like dying” while in solitary.

Testimony Begins

In 2015, the B.C Civil Liberties Association and the John Howard Society of Canada jointly sued the federal government over the use of solitary confinement (often referred to as “administrative segregation”).

James Lee Busch, a prisoner at B.C’s Mission Institution, is one of six inmates expected to take part in the trial and testify about their experience with solitary confinement.

Mr. Busch stated that he has been in solitary confinement eight times: three times while serving a sentence for aggravated sexual assault, and five times since he pleaded guilty to second-degree murder in 2010. Mr. Busch testified that he has spent nearly all of his adult life in prison, on probation, or on parole, and still struggles with his experiences in solitary.

His longest stay in solitary was 66 days, when he was at Saskatchewan Penitentiary in 2009. He was placed in solitary for passing a guard a note inviting her to call him once he was released and cursing a psychologist who wanted to prescribe him psychotropic medication (which he has had negative experiences with in the past).

Suicidal Feelings in Solitary

Mr. Busch’s 66-day period of solitary confinement began in October 2009, during which time he would spend 23 hours a day in a small cell. Almost immediately, Mr. Busch said he felt depressed, and that suicidal feelings began “almost as soon as the door of the cell closed behind [him]”. Prior to entering solitary, Mr. Busch had been taking high-school equivalency courses and was close to nearly graduating. While he was in solitary, he could not attend classes, and eventually lost motivation.

Mr. Busch’s segregation was reviewed four times during the period he was there, but it was not made clear how he was a threat to the institution. During his second review, Mr. Busch says he asked to be returned to the general population, as he knew that his mental state was deteriorating. His request was not granted.

During his third review, which occurred on Day 54 of the solitary confinement, Mr. Busch says he told the reviewers that he “felt like dying”. Mr. Busch further said that once he agreed to take the psychotropic medication that was originally prescribed to him, he was released into general population. He believes that his stay in solitary confinement was used to “coerce” him into taking the medication.

Mr. Busch testified that:

“I know that I have committed crimes and that I deserve to be punished for them. But, I am still part of this Canadian community and I do not believe that any Canadian deserves to suffer the consequences of segregation”

We’ve blogged regularly about prison conditions in Canada. We will continue to follow developments in this trial as it unfolds, and will provide updates as they become available.

The Oshawa criminal lawyers at Affleck & Barrison LLP 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 offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation

BC Supreme Court to Review Legality of Canada’s Use of Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

A trial that began in British Columbia’s Supreme Court this week could potentially impact the use of solitary confinement in Canadian prisons.

The Trial: A Brief Backgrounder

At the core of the trial is a challenged filed against the federal government by the British Columbia Civil Liberties Association (BCCLA) and the John Howard Society of Canada, who argue that current rules around solitary confinement are inhumane and unconstitutional.

The federal government recently introduced a 15-day limit on solitary confinement; however, Josh Paterson, the Executive Director of the BCCLA, has said that this limit is merely a guideline beyond which a prison warden can provide justification in order to keep someone in confinement. Mr. Paterson has stated:

It amounts to no time limit at all. What we need to see is absolute time limits and caps because as we’ve seen, without a time limit the federal government has kept people in solitary confinement for years on end on the warden’s say-so… We know the new government is trying to make some changes. We don’t think it’s good enough and that’s why we’re continuing with this court case.

Notably, the United Nations considers solitary confinement for more than 15 days to be torture.

The Use of Solitary Confinement in Canada

There are currently two types of solitary confinement used in Canadian prisons:

  • Disciplinary segregation: segregation used as a punishment. This form of segregation requires a hearing, and has a time limit of 45 days.
  • Administrative segregation: segregation used more broadly, generally where inmates are in danger, either from other inmates or from self-harm.

The challenge specifically addresses administrative segregation, and follows a settlement that the BCCLA won for a Saskatchewan woman who had been held in solitary confinement in a British Columbia prison for more than 3.5 years. This case also follows public outrage over the plight of Adam Capay, a young inmate who spent almost 4 years detained alone in a plexiglass basement cell in the Thunder Bay District Jail here in Ontario.

Experts say that women, particularly indigenous and mentally ill women, are disproportionately affected by the negative aspects of solitary confinement. While women only comprise about 20% of the Canadian prison population, they are more likely than men to self-harm, and therefore more likely to end up in administrative segregation.

We’ve regularly blogged about solitary confinement and prison conditions. The issue of solitary confinement is now being investigated at all levels of government, in multiple jurisdictions, including by the Ontario Ombudsman, the Ontario Human Rights Commission, the federal government, and now the B.C Supreme Court. We will continue to follow developments in this trial, and will provide updates as they become available.

At Affleck & Barrison LLP in Oshawa, our 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

Ontario Ombudsman Calls for New Laws and Strong Oversight of Inmate Segregation 

Written on Behalf of Affleck & Barrison LLP

As we addressed in a previous blog, the Ontario Ombudsman has been investigating the use of solitary confinement in correctional facilities across the province.

This week, the Ombudsman released a 72-page report calling on Ontario to reform its “flawed” system of placing and tracking inmates in solitary confinement. The investigation revealed a number of issues that place vulnerable people at risk.

The Report

The Ombudsman launched his investigation after the treatment of Adam Capay, a 24-year old who had been held in solitary confinement in the Thunder Bay Jail for more than 4 years, made headlines.  Capay had been detained, alone, in a plexiglass cell in a basement where lights were on for 24 hours a day, making it impossible for him to know whether it was night time or day time. While Capay was held in segregation for more than 1,500 days, data from the Ministry of Community Safety and Correctional Services incorrectly stated that he had been segregated for only 50 days.

The Ombudsman noted, about Capay’s treatment, that the young man had been “…out of sight and out of mind”. The report, entitled Out of Oversight, Out of Mind identified a number of serious issues with the solitary confinement system, including how the province defines inmate segregation and the overuse of segregation as a form of inmate punishment.

The report recommends that inmates be held in solitary for no more than 15 days, and only once all other options have been exhausted.

The Ombudsman told CBC News that:

“Solitary confinement is supposed to be an absolute last resort and that’s not what is happening”

The Ombudsman’s Office has received more than 800 complaints about solitary confinement over the last four years.

The Investigation

Over the course of the Ombudsman’s investigation, 10 000 documents were reviewed, 36 interviews were undertaken, and 4 facilities were visited. The investigation’s findings were shared with Howard Sapers, the former Correctional Investigator of Canada, who is responsible for leading a separate review of inmate segregation.

Unfortunately, neither the Ombudsman’s Office nor the province has been able to obtain accurate statistics on segregation. The Ombudsman says that this is due to the fact that Ontario has never clearly or universally defined segregation, and that the methods of tracking solitary confinement (i.e.- measuring how long an inmate spends alone) vary from facility to facility.

The report made 32 recommendations. Specific recommendations for the Ministry of Community Safety and Correctional Services state that the Ministry should:

  • Within the next six months, establish a new definition of “segregation” in relevant legislation, to be applied to all inmates in segregation-like conditions. The definition should be in accordance with international standards;
  • Consult with and train correctional staff on the new definition, and provide adequate tools and resources in order to track placements accurately;
  • Placements should include “continuous” segregation when inmates are transferred between units and institutions;
  • Ensure that the placement tracking system alerts front-line managers when required reviews for inmates should take place (i.e.- every 5 and 30 days, and after 60 days in one year);
  • Create an independent panel to review all segregation placements, and place responsibility on the Ministry to show that each placement is justified;
  • Ensure that segregation is only used as a last resort in every instance;
  • Publicize anonymized segregation data
  • Collect and analyze statistics on the use of segregation, including information about the race, gender, mental health status, and other data about inmates;
  • Report results to the public on an annual basis;
  • Report back to the Ombudsman every six months.

The Ministry has accepted most of the recommendations made in the Report and has stated that it will explore others as part of its ongoing efforts to reform the province’s corrections system.  The province has agreed to provide the Ombudsman’s Office with regular progress reports.

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

At Affleck & Barrison our firm and its predecessors have been representing clients charged with criminal offences and protecting those clients’ rights since 1992.  Our lawyers are extremely knowledgeable and are experienced at defending a wide range of charges.  Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.

Ontario Ombudsman to Investigate Solitary Confinement Practices in the Province

Written on Behalf of Affleck & Barrison LLP

As we have regularly been blogging about , the use of solitary confinement in correctional facilities in Ontario has been in the news since the story of Adam Capay’s plight at the Thunder Bay District Jail came to the public’s attention earlier this year.

Last week, Ontario Ombudsman Paul Dube announced that he has launched an investigation into the way in which the province tracks and reviews the placement of prisoners in solitary confinement. The Ombudsman’s investigation will look into how the system logs prisoners in segregation, how the system counts the amount of time they have spent in isolation, and will examine the effectiveness of the safeguards that are intended to scrutinize segregation placements.

The Ombudsman has stated that this investigation was prompted, in part, by the details that have been emerging about the conditions that Adam Capay was kept in at the Thunder Bay facility. Another factor prompting the investigation was a spike in complaints about solitary confinement.

Since April 1st of this year, the Office of the Ombudsman has received 175 complaints pertaining to segregation, which is on track to surpass the number of complaints made in previous years. Overall, the office received a total of 4,051 complaints about provincial correctional facilities in 2015-2016.

The office has stated:

As a fully independent, impartial office that has been investigating thousands of complaints about Ontario correctional facilities for more than 40 years, we are uniquely placed to investigate and comment on this issue

The investigation will be conducted by the Special Ombudman Response Team (SORT), which is responsible for the office’s major field investigations. The investigators will visit several institutions, and among other things, review statistics, procedures, and other documentation related to segregation. The goal is to complete the investigation as quickly as possible.

The Ontario government recently appointed Howard Sapers, a former federal correctional investigator, to review the province’s segregation practices and the operations of the correctional system overall, beginning in January 2017. The Ombudsman has stated that Mr. Sapers’ investigation “would not conflict” with SORT’s investigation, but rather, would “enhance that effort”.

Previous Actions Taken

Earlier this year, a Globe and Mail investigation uncovered significant disparities in the way Canada’s provincial, territorial, and federal prison systems were tracking the length of time that inmates were spending in solitary confinement. For instance, Ontario was unable to provide detailed information about how many prisoners had spent more than 15 days in solitary over the previous five years. The United Nations considers solitary confinement for more than 15 days to be torture.

In May 2016, the Ombudsman made an official submission and 28 recommendations on the ongoing use of segregation. Among the recommendations was a call for an outright ban on long-term confinement, and a recommendation that the province strictly adhere to the 15 day limit.

The submissions also noted that the Ombudsman’s office had alerted the Ministry of Community Safety and Correctional Services several times in recent years about correctional facilities “not meeting their legal requirements to review and document segregation placements”.

At Affleck & Barrison our firm and its predecessors have been protecting client rights since 1992. Our skilled lawyers have significant experience defending a wide range of criminal charges and protecting our client’s legal interests.  We are available 24 hours a day, and offer a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.

Second Psych Evaluation Approved for Inmate in Solitary Confinement in Thunder Bay

Written on Behalf of Affleck & Barrison LLP

As originally blogged about several weeks ago, the Ontario Human Rights Commission has called for an end to solitary confinement in Ontario prisons, and has shed light on the plight of Adam Capay, an inmate who has spent almost 4 years detained, alone, in a plexiglass cell in the basement of the Thunder Bay District Jail.

The Globe and Mail is now reporting that Thunder Bay Superior Court Justice Danial Newton has agreed to a request for an in-patient psychiatric assessment made by Mr. Capay’s new team of lawyers. Additional details about the assessment, including the reasons it was ordered, are covered by a publication ban.

Mr. Capay originally underwent a similar assessment last year that determined that was fit to stand trial. However, that was before his circumstances changed. When Renu Mandhane, Ontario’s Chief Human Right’s Commissioner, visited Mr. Capay during her tour of the Thunder Bay facility in October of this year, he informed her that he had been suffering from speech and memory problems brought on by his confinement in the cell, made worse by constant illumination by artificial light.

Other Developments

Several different lawyers have represented Mr. Capay, and three trial dates have been adjourned over the period of Mr. Capay’s pre-trial custody (now numbering more than 1,600 days).

Mr. Capay is represented by a team of four lawyers who, according to a statement they recently released,  are working on “all aspects of his case”. Mr. Capay’s next scheduled court appearance is on January 30th.

Last week, David Orazietti, the province’s Correctional Services Minister, requested funding for new infrastructure in Thunder Bay, and sent a 25-member team to examine conditions in solitary confinement cells around the province.

Employees at the Thunder Bay District Jail have stated that Mr. Capay is considered “too dangerous” to place among other inmates in the general population unit, and that there are few confinement options available other than segregation at the overcrowded facility.

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

At Affleck & Barrison our firm and its predecessors have been protecting client rights since 1992. Our lawyers are extremely knowledgeable and are experienced at defending a wide range of criminal charges.  We are available 24 hours a day, and offer a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.