WHY?

“Ottawa abandons solitary case”, read the headline under the Globe and Mail front-page banner on Wednesday, April 22. For five years, the federal government has been aggressively defending the status quo in federal prisons on the one hand, and then attempting to mollify its critics with Bill C-83 on the other.

Canada’s Supreme Court agreed to hear arguments arising from lower court decisions in British Columbia and Ontario challenging Correctional Service of Canada’s use of solitary confinement, decisions that had gone against the government time after time and decisions which were persistently appealed by Ottawa.

“A joint statement released on Monday (April 20) from the offices of Public Safety Minister Bill Blair and Attorney-General David Lametti said the government decided to the abandon the appeal because legislation passed last year effectively repealed administrative segregation, the prisoner-isolation method akin to solitary confinement that has been the target of recent court challenges,” read the Globe and Mail story under Patrick White’s byline.

Don’t buy it.

The federal prison industry loathes attempts to shine a light on its operations. It is constant in sidestepping demands for public accountability and oversight. The government’s move to appeal each and every court ruling against the use of solitary confinement defended not just the practice but its entitlement to use whatever segregation policy it chose, its entitlement to establish any action, any behaviour, without question. In an environment where the Supreme Court would likely feel encouraged to uphold lower court decisions around solitary confinement, government obstinance would only serve to expose Correctional Service of Canada to greater scrutiny and criticism. Better to count one’s losses and withdraw.

As it stands, Bill C-83 does not meet the standards advanced by reform advocates. In the April 5th posting, Solitary confinement. It’s going to the Supreme Court, the Globe and Mail noted in a February 14 article that, “Bill C-83 was widely panned in prison law circles. In a letter to Ottawa, more than 100 lawyers and academics argued that it authorized ‘solitary confinement under another name’ and ignored lower court orders to adopt binding independent oversight and a 15-day limit on placement in isolation.”

That last posting also pointed to antipathy towards the new Structured Intervention Units on the front lines. While CSC has still to fully implement even the limited provisions of Bill C-83 in many institutions, some correctional officers…..and stress some…have taken it upon themselves to undermine the new policies as impractical, counterproductive, and unmanageable. A guard on a SIU range may demean inmates using language such as “goof” and “rapehound” to generate tension and conflict among the prisoners. Guards may kick inmate cell doors during their night walks along the range to disturb sleep, one more irritant to stress levels. An ‘accidental’ double-dooring will lead to an inmate-on-inmate assault, furthering arguments in opposition to the changes. (Double-dooring is the terminology describing a practice where guards open the door of a vulnerable inmate’s cell, and at the same time open the cell door/doors of that inmate’s antagonists in order to incite an assault.)

In the meantime, back in early March, Ontario’s Court of Appeal upheld a lower court decision that federal inmates should be compensated for time spent in solitary confinement The Court endorsed $40-million in damages awarded in two class-action cases from last year. The government had argued that since courts had only recently characterized Correctional Service of Canada’s use of segregation as cruel and unusual punishment, Canada was absolved for any historical use of the practice. So, CSC and the government were claiming they didn’t know isolation can cause physical and mental harm within a few days. Imagine that! All the same, don’t expect cheques in the mail any time soon.

What to do? Persist, persist, persist!

WHILE WAITING, THERE’S STILL WORK TO DO.

Back on February 14, the Globe and Mail published Patrick White’s “Solitary confinement headed for showdown at top court.”
“Canada’s top court has agreed to hear arguments on the constitutionality of prolonged solitary confinement, setting up a final showdown in a years-long legal push to ban isolation practices in federal prisons.”

The government passed Bill C-83 last year to mollify critics and address the shortcomings of current practices, but “Bill C-83 was widely panned in prison law circles. In a letter to Ottawa, more than 100 lawyers and academics argued that it authorized ‘solitary confinement under another name’ and ignored lower court orders to adopt binding independent oversight and a 15-day limit on placement in isolation.”

Tucked deep into Mr. White’s account was, “Correctional Service of Canada has also appointed University of Toronto criminologist Anthony Doob to head a panel that will monitor implementation,” referring to Bill C-83.

To this point, federal prisons haven’t fully executed the provisions of the Bill’s promises, and there are grim indications of a subversive bias at the institutional level against any change from prior policies and practices. CSC’s national headquarters is either not aware of this antipathy in the trenches or assumes all is well up and down the line and anticipates an at-arms-length scrutiny will echo its own bow to compliance.

Anthony Doob is a prominent Canadian criminologist and professor emeritus of criminology at the Centre for Criminology & Sociolegal Studies at the University of Toronto. According to Wikipedia, he is “one of the most prolific criminologists in Canada and is consistently one of the three most cited Canadian scholars in the field. His research has included studying the effectiveness of certain crime-reduction policies, including carding.”

We can expect Professor Doob to be objective, inclusive and thorough, but there is no harm in offering encouragement:-

March 27, 2020

Professor Emeritus Anthony Doob, C.M., FRSC,
Centre for Criminology & Sociolegal Studies,
Toronto, ON M5S 3K9

Re: Bill C-83

Dear Professor Doob:

Patrick White’s “Solitary confinement headed for showdown at top court” published in the February 14th Globe and Mail includes, “Correctional Service Canada has also appointed University of Toronto criminologist Anthony Doob to head a panel that will monitor implementation,” with reference to Bill C-83.

No doubt your experience tells you the work the panel you head will do must include the perspective of inmates, and in numbers at least equal to CSC staff members interviewed. Of importance too is that you follow your own counsel in observations and inspections to arrive at acceptable objective assessments.

Be forewarned. The Standing Senate Committee on Human Rights released “Interim Report – Study on the Human Rights of Federally-Sentenced Persons: The Most Basic Human Right is to be Treated as a Human Being (1 February 2017 – 26 March 2018)” in February of 2019. To excerpt from page 64 of that report, “….the committee was informed that a number of federally-incarcerated persons refused to meet with the committee for fear of reprisal. The committee was very concerned to find that this fear extended to communications with senators during site visits. In this context, it was particularly disturbing that at certain institutions, correctional staff surreptitiously listened to the committee’s confidential meetings with federally-sentenced persons, despite the committees (at times repeated) requests for privacy.”

With my best wishes for continued successes, I am,

Yours truly,

Charles H. Klassen

Good advice never gets old.