SPOTLIGHT: WHY THIS JUST WON’T GO AWAY

The controversy and legal actions over the use of solitary confinement in provincial jails and federal prisons has been a media staple for the last many years. This site has reported at least twice on the practice of separating inmates from population (“The Canadian Bar Association comments” – March 17/19 & “Solitary Confinement” – February 3/19).

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The previous Ontario government hired former federal correctional investigator Howard Sapers to recommend reforms to provincial jail policies, including a rethink of the segregation of inmates, sometimes up to 24 hours a day which contradicted even the existing guidelines. Ontario employed Sapers in response to court rulings against established policies, but the ministry’s later revisions limiting segregation practices didn’t necessarily make for major changes.

Jail guards in Ontario adapted. One method that created quasi-segregation conditions when an inmate could not be placed in old solitary cells was to substitute the most remote cell on a range. Since new rules required a certain number of hours out of a cell, those hours were timed to when other inmates were locked up.

The effectiveness of the reforms in Ontario jails depends upon the willingness of management to do just that….manage. Meanwhile, some provinces continue to use solitary confinement as a recourse for inmates who are aggressive, suicidal, mentally unstable, or as reprisal for anything not meeting staff approval. Whether it’s a provincial or the federal government, the one option to force change is the courts, and the stamina to withstand appeals.

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The government of Canada has been in the courts for years, first arguing its support for Correctional Service of Canada’s existing prison policies, particularly with the use of solitary confinement, and then appealing decisions that have gone against it. Actions challenging the prison agency have been centered in British Columbia and Ontario where rulings have either been upheld on appeal or are pending.

Knowing the jig is up, the government tabled Bill C-83 last year which it claimed did away with solitary confinement, passed it to committee, sent it on to the Senate which returned a package of amendments that the Commons rejected, shepherd it through third reading, and received Royal Assent this summer.

Bill C-83 is now law. Rather than segregating federal prisoners who are a risk to security or themselves, inmates would be moved to “structured intervention units” (SIUs) where they are intended to get “better programming,” more mental health care and more contact with others.

Firstly, not all institutions have a range of programming even for inmates in population. What does “better programming” for SIU inmates mean in those prisons? Notably, a group of over 100 lawyers and academics sent a letter to the Senate while that body was considering the legislation to say that SIUs “continue to be solitary confinement under another name.” It claimed that without the Senate amendments the bill “specifically allows for prolonged solitary confinement without independent oversight. This is a clear violation of international human rights.”

Ralph Goodale, the minister responsible for CSC, argued Bill C-83 includes independent oversight through “independent external decision makers” without specifying the process for selecting candidates, the qualifications expected, or how appointments would be made. Senator Kim Pate, a member of the Senate Human Rights Committee and a lifelong advocate for prisoners’ rights, questioned how independent the new external reviewers will be if chosen by the minister. Senator Pate claims that without judicial oversight the law will be unconstitutional. Expect to see more lawsuits, no matter which party forms the next government.

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Here’s a thought. Nobody has to tell government prison agencies how harmful and damaging solitary confinement is under most conditions. They’re on the front lines. They know the downsides. So, for one, why should it be left to civilian bodies and the courts to force governments to do the right thing? Why aren’t our elected bodies and the public servants working under them leading the way to long overdue reforms?

What’s more, once the system failures have come to light, why isn’t CSC and its provincial counterparts openly interacting with the courts and the public to find solutions to effectively manage difficult institutional inmate crises?

Why are they so afraid of the light?