The use of solitary confinement in Canada could soon undergo major changes as prominent figures and organizations issue ever louder calls to reform the practice – or even abolish it entirely.
“Ending segregation is not a revolutionary, unrealistic, or aspirational idea,” says Renu Mandhane, Chief Commissioner of the Ontario Human Rights Commission. “It is primarily one of adequate resources and political will.” Mandhane recently provided submissions on the human rights implications of the use of solitary to the government of Ontario – Canada’s largest province – which is currently reviewing its use of the practice.
Provincial jails are where individuals are detained on remand waiting for trial and to serve sentences of less than two years. Recent figures released as part of a lawsuit settlement show that at two of Ontario’s biggest jails, individuals in segregation daily averaged approximately seven per cent of the total prison population.
“The extent and gravity of [Human Rights] Code concerns with the use of segregation is why the OHRC is taking the rare step of advocating that Ontario show bold leadership by publicly committing to eliminate this practice across all its institutions,” says Mandhane. “The solutions are clear, albeit challenging, but the political environment is ripe for a new approach to corrections — one that is firmly grounded in equality, human rights, and human dignity,” says Mandhane.
Acknowledging that the practice is not likely to be abolished immediately, the Commissioner recommends interim measures until that happens, including external oversight and strict timelines.
There is also optimism about the potential for significant change of the use of solitary in federal prisons, where individuals are incarcerated for custodial sentences of more than two years.
Soon after Prime Minister Justin Trudeau was elected last fall, he directed his government to implement a series of recommendations around solitary, which include a ban on prolonged solitary of more than 15 days and an upper limit of 60 days total per year.
Trudeau instructed Justice Minister Jody Wilson-Rayboud that one of her top priorities would be to implement “recommendations from the inquest into the death of Ashley Smith regarding the restriction of the use of solitary confinement and the treatment of those with mental illness.”
The commitment refers to recommendations that came out of the inquest into the death of Ashley Smith, a young woman who spent more than 1000 days in solitary and died as prison guards watched from outside her cell.
The political will for reform at the federal level represents a significant shift after a decade of rule by the Conservative Party, which was hostile to the Smith inquiry recommendations and under whose watch the use of solitary steadily grew.
Trudeau’s announcement has been welcomed by advocates for solitary reform in prisons.
“It would be an excellent start if the government was to implement the recommendations,” said Noa Mendelsohn Aviv, a director at the Canadian Civil Liberties Association, in an interview with Solitary Watch. “We need very much to get up to speed to bring Canadian correctional policies up to the international standards that have been set and to reflect the scientific findings about the harms of solitary.”
The CCLA hopes the government goes beyond the Smith recommendations in areas such as the treatment of vulnerable individuals, including those with mental illness, as well as the need for transparency and accountability around decisions when solitary is used, Mendelsohn Aviv said.
The civil liberties group is an applicant in one of two lawsuits filed last year alleging that the current practice of solitary is unconstitutional because it violates the right not to be subjected to cruel and unusual punishment and the right to life, liberty and the security of the person. The courts therefore remain an avenue to push possible reform if the federal government’s proposals or their implementation fall short. The lawsuits could also set a precedent for the use of solitary in provincial jails across the country.
Mendelsohn Aviv advocated a cautious approach in terms of the government’s announcement: “We need to see actual changes on the ground,” she said. “These are postive steps forward and they need to happen ASAP.”
The government has not provided a timeline for the changes. A spokesperson declined Solitary Watch’s interview request and instead directed questions to the Correctional Service of Canada – the agency responsible for prisons – which did not provide an interview or comment.
The CSC has been widely criticized for dragging its feet on implementing reform recommendations around solitary. However, just shortly before last fall’s election, the agency quietly announced a series of moderate reforms, which include an advocate to help individuals with mental illness in solitary.
The agency also recently revealed in a rare media interview that it had cut in half the number of individuals held in long-term solitary confinement since last March. A senior official with the CSC told the Globe and Mail newspaper that the total number of individuals in solitary has been reduced by 34 per cent since last March and that the number of individuals spending more than 60 days in solitary had declined by 52 per cent.
The agency claims the reduction is part of a two-year “renewal” strategy that began after the release of the recommendations from the Smith inquest.
“I think the segregation renewal strategy was very effective in doing what it was supposed to do,” said Chris Hill, CSC’s Director of Security Operations, Procedures and Monitoring.
The reduction is in sharp contrast to a report released last summer by Correctional Investigator Howard Sapers, which showed that the number of individuals spending time in solitary over the past the past decade had consistently rose and that Black and Indigenous individuals were highly overrepresented in segregation. At the time, Sapers described the use of solitary as “out of control.”
The Correctional Investigator recently released his most recent annual report, which found that almost half of those individuals currently incarcerated have spent time in segregation and that 14 of 30 suicides during the period studied occurred in solitary cells.
“Segregation is the most onerous and depriving experience that the state can legally administer in Canada; it is only fitting that safeguards should match the degree of deprivation. The system desperately requires reform not “renewal,” says the report.
The Office of the Correctional Invesigtator recommends that CSC “significantly limit the use” of solitary, abolish its use for youth under 21 years and for individuals with mental illness, and prohibit stays longer than 30 continuous days.
As Correctional Investigator, Sapers has often been a thorn in the side of both the government and CSC for various damning reports and recommendations for reform he has put forward. His job was in limbo since the Conservative government announced that he would not be reappointed despite his request to continue. A replacement was not announced before last fall’s election and Sapers has remained in the position with an extension of his current term.
On March 31, the day that extension was set to expire, Ralph Goodale, Minister of Public Safety and Emergency Preparedness announced that Sapers had been renewed for an additional one-year term. Goodale said Sapers’s “experience and dedication will be invaluable as we move towards fulfilling the Government’s commitment to review the criminal justice system…Our Government believes in strong public institutions, in transparency and accountability, and that includes an accountable federal correctional system that is fair, humane, and effective.”