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.