The May 29 posting critical of the overuse of solitary confinement in Canada’s penal institutions targeted Ontario’s provincial system.

The letter to Ontario’s Yasir Naqvi published last week was followed closely by a recommendation to Canada’s Public Safety Minister Ralph Goodale for our federal prisons. Correctional Service of Canada has a history of practiced and adroit sidestepping of progressive measures endorsed by the Correctional Investigator, other stake holders, and even political leaders. That’s why Lisa Kerr has insisted that positive structural and procedural changes must be enshrined in legislation.

I wonder if the Trudeau government has the chutzpah to show CSC management that it’s “our way or the road.”

June l, 2016

The Honourable Ralph Goodale,
Minister of Public Safety,
House of Commons,
Ottawa, ON K1A 0A6

Re: Solitary confinement: Stop the torture

Dear Minister Goodale:

You may be familiar with the Toronto Globe and Mail’s Tuesday, April 26th editorial, “Stop the torture”, a condemnation of Canada’s overuse of segregation in our provincial and federal penal institutions. A copy is attached.

Included as well with this is Lisa Kerr’s “Solitary confinement rules must be written in law”, from the Globe’s Monday, May 2nd edition. Professor Kerr accuses Correctional Service of Canada of pre-empting substantive reforms by only improving procedural inmate protections, which any informed observer knows is no reform at all. She argues that only legislative action will result in the changes your government supports.

Current CSC management has a history of recalcitrance. If you intend to leave the team in place, then at least send Mr. Head and his subordinates on a tour of European prison systems. Denmark and Germany should top the list. Their observations will either inform the direction Canada’s prison policies will take, or persuade Mr. Head, et al, to consider their career options.

Dillydally no more. Act now!

Yours truly,

Charles H. Klassen

cc Don Head, Commissioner, Correctional Service of Canada

An unsolicited email received from Yasir Naqvi and dated May 11 invited submissions for the “Comprehensive Review of Segregation” Ontario’s Community Safety & Correctional Services is undertaking. This has been in the works since the media began heavily criticizing federal and provincial governments and our penal systems for its overreliance on the use of solitary confinement, and the resulting damages of the practice.

The invitation came about because of letters sent to Minister Naqvi over time questioning the operation of this province’s jails. However, the deadline for submissions was May 15, too late for us to offer an opinion. It’s never too late though to argue a position. We’ve published our letter to Mr. Naqvi here, and have copied five stakeholders as listed.

There is a reference in the letter to the Globe and Mail’s Tuesday, April 26 editorial, “Solitary Confinement: Stop the torture”, and copies were attached to the addressees. Copyright prevents our reproducing it here, but we can quote from it.

Firstly, the title is definitive. The editorial begins, “What does it take to get governments to pay attention to crises of their own making? In the case of the cruel overuse of solitary confinement…….., the answer would appear to be that there is nothing at all that can move authorities to action.” It continues, “….only Ottawa has made a firm commitment of any kind to ban long-term solitary confinement in federal prisons…”, and concludes, “Solitary confinement, when misused the way it too often is in Canada, is torture. Only the 14 governments that oversee it can fix this. That only one has made a commitment to do so is shameful.”

May 24, 2016

The Honourable Yasir Naqvi,
Minister of Community Safety & Correctional Services,
18th Floor, George Drew Building.
25 Grosvenor Street,
Toronto, ON M7A 1Y6

Re: Comprehensive Review of Segregation

Dear Minister Naqvi:

I thank you for your May 11 email requesting submissions around a review of segregation policies in the province’s jails, but your May 15 deadline left me unable to contribute. Nonetheless, I will comment.

First, I would recommend the Globe and Mail Editorial from Tuesday, April 26 of this year, entitled “Solitary Confinement: Stop the torture”, copy attached.

Reform evasion: Correctional Service of Canada has attempted to pre-empt federal reforms to segregation by voluntarily revising its use of solitary confinement, but only by improving procedural policies. Practices don’t change. Likewise, CSCS is using SHU (Special Handling Unit) ranges to move inmates out of segregation into an environment which can easily be as bad, or worse, than segregation, primarily because of incessant lockdowns. When staff shortages arise elsewhere in an institution, guards are pulled from SHU ranges and inmates there are simply locked down, sometimes for days. But, technically, the SHU is not ‘segregation’ and not subject to the review you are undertaking.

Compliance: Your office and CSCS management presume policies, practices and procedures in force within our provincial institutions are followed as a matter of course. I don’t doubt they are, to a large degree. However, there isn’t an inmate or inmate support who doesn’t understand best practices are at times compromised as “suggestions”, while relevant documentation will conform to the management model all the same. CSCS has not thus far guaranteed safeguards to independently scrutinize compliance.

Inmate Remedy: Provincial inmates have no substantive resource to challenge a segregation placement, or any institutional decision for that matter. Internal options are weighted against a complainant. Most external choices manage broad mandates which can leave jail inmates in a priority margin. Not only that, but even if an inmate is able to access the Inmate Information Guide for Adult Institutions (September 2015), pages 10 to 15, and can obtain assistance from staff, the complexities of the process can seem daunting, be discouraging, and too often regarded as futile, particularly where there are financial considerations.

There is no Utopian solution, but a major move in the right direction would see Ontario establish a dedicated destination solely for prisoner petitions, similar to the federal Office of the Correctional Investigator. An important distinction between the federal OCI and an Ontario equivalent though would have the provincial office submit its annual report directly to the legislature, rather than through CSCS or the Attorney General.

Whatever changes your office proposes, the objective must be a level playing field, both in substance, and with the perception, of fairness, legitimacy and impartiality, backed by an at-arms-length enforcement component.

Yours truly,

Charles H. Klassen

Margaret Welch, Associate Deputy Minister, Correctional Services, MCSCS
Christina Danylchenko, Assistant Deputy Minister, Institutional Services, MCSCS
Paul Dubé, Ombudsman, Office of the Ombudsman of Ontario
Human Rights Legal Support Centre,
Honourable Glen Murray, Ministry of Environment & Climate Change

Note:  Glen Murray is our local MPP

A social/legal worker who frequently visits Ontario’s provincial jails to assist inmates with navigating our courts arrived at an institution one evening for an 8pm appointment. The meeting was to finalize a court-ordered report which would expedite an inmate’s release. But, time was short, and a deadline loomed.

After signing in, shown into an interview room, and then waiting twenty minutes, a staff member told this worker that the inmate had refused the meeting. This wasn’t true, the worker knew that, but said nothing, and left the institution.

Why would the worker be told what all involved knew was a lie, and why would the worker not protest? Why would one of your public servants interfere?

Well, perhaps a guard was angry with the inmate for some reason, or annoyed with the worker. Maybe no guard wanted to escort the inmate to the meeting. Perhaps available guards just couldn’t be bothered. The possibilities are aplenty.

Doesn’t happen? Really? Then you need to speak to an officer of the court, a social/legal worker, a lawyer…..or, perhaps a jail guard.

Why wouldn’t the worker complain? Because, quite simply, a complaint would make later work more difficult in any provincial jail.

Doesn’t happen? Really? Then, you need to speak to an officer of the court, a social/legal worker, a lawyer…..or perhaps a jail guard.

Why not post names, dates, places, more complete details? Well, if the HonourableYasir Naqvi, Ontario’s Minister of Community Safety and Correctional Service, thinks all is right with the world, then more information puts people at risk…….from our own public servants.

One other example, but with a another inmate. A lawyer arrived at an institution to meet a client, and was subsequently told the visit was refused. And to repeat, this was a lawyer trying to confer with a client. Of course the inmate had not refused, the lawyer knew this and perhaps wasn’t compliant and humble, so when the same lawyer arrived at another time to meet with the same client, the lawyer was told the client had been moved to a different institution. The lawyer went to the other location only to learn no such transfer had taken place. Again, identifying details only jeopardizes the lawyer/client relationship…..again, from our own public servants.

Doesn’t happen? Really? Then you need to speak to an officer of the court, a social/legal worker, a lawyer….or perhaps a jail guard.

Granted, this isn’t part of the daily routine and the frequency with which it occurs is a subject for speculation, but that it happens at all is unacceptable. This is but one of a few shortcomings within our provincial penal system that confounds the administration of justice and which prompted this letter to the Criminal Lawyers Association:-

April 28, 2016

Anthony Laycock, Executive Director,
Criminal Lawyers Association,
189 Queen Street East, Suite #1,
Toronto, ON M5A 1S2

Re: Ontario’s provincial jails

Dear Director Laycock:

For the last twenty-five years or more of observation and tapping into the first-hand experiences of others, the penal institutions operated by Ontario’s Ministry of Community Safety and Correctional Services posit one omni-present question.

Why are you putting up with the conditions under which you and your clients suffer?

Set aside how widely known to the public the circumstances in our jails are, certainly every person walking the corridors of any Ontario provincial courthouse is aware of a high degree of ethical and moral corruption among some front-line uniformed jail workers. At the very least, this is costly to you, the people you represent, and the operation of our courts. At worst, it ‘brings our system of justice into disrepute.’

Bottom line: this would be better if it didn’t stink!

Remedies? MCSCS management and their political masters do their jobs, insisting that policies, procedures, best practices……and the law, are not only followed, but that compliance and accountability are watchwords throughout the ministry. A responsible, progressive, responsive government sets up an inmate-exclusive resource like the federal Office of the Correctional Investigator.

Reform is unlikely though until you, your organization, lawyers, their firms, and the courts prod, provoke and challenge the status quo. Change cannot come soon enough.

Yours truly,

Charles H. Klassen

For years Stephen Harper and his crew played politics with logic. His government’s so-called tough-on-crime agenda defied the best available evidence in the field, costing taxpayers dearly and playing to a base that, like him and his colleagues, relished the wrong side of right.

Much can be written of the damage done, the thorny path to navigate the murky maze to daylight, and the challenges to initiating more progressive solutions. In the meantime though, and given recent Supreme Court decisions, a short and pointed jab to twisted egos offered a sunny spring recess from the serious business of resetting our priorities.

April 23, 2016

The Right Honourable Stephen Harper,
House of Commons,
Ottawa, Ontario,
K1A 0A6

Mr. Harper:

“Supreme Court rules against tough-on-crime legislation”
Toronto Star, Friday, April 15, 2016
“Supreme Court rulings signal end for Tories’ tough-on –crime sentences”
Globe and Mail, Friday, April 15, 2016
“Scrap these laws”
Toronto Star Editorial, Monday, April 18, 2016
“No longer mandatory”
Globe and Mail Editorial, Monday, April 18, 2016

And who didn’t know that reason would prevail as soon as the medievalists were booted from office.

I told ya, I told ya, I told ya…….

Charles H. Klassen

copies to: Rob Nicholson/Victor Toews/Steven Blaney

If the health care unit in Toronto South Detention Centre, Ontario’s 2 year-old superjail located in the southwest corner of the city, was moved to a location outside the institution, let’s say two kilometers or so away at the corner of Islington and Evans Avenues, and was open to the public, it would be a health care clinic threatened with a criminal investigation.

Strong words, yes, and not the first time we’ve addressed the subject. Ameliorating this critique if only a little, it may be unfair to single out this one penal institution when other provincial jails are comparable. TSDC, though, is supposed to be the end-all and be-all for custodial management in Ontario, and is an easy target.

While we are unaware of how jails in other provinces and territories stack up, we can speak to health care in our federal prisons under the domain of Correctional Service of Canada. This won’t be a lengthy analysis of any shortcomings to the health care our prison populations can access, but rather challenges bureaucratic misrepresentations of the quality of care in Ontario and federal institutions.

Prison populations have higher rates of mental health issues, substance abuse and communicable diseases than the community at large. This circumstance has been a constant, and subject to numerous studies. Fiona Kouyoumdjian, a postdoctoral fellow with the Centre for Research on Inner City Health of St. Michael’s Hospital in Toronto, has recently released the first-of-its-kind comprehensive portrait of prisoner health across the country. Nothing in this paper is new to jail/prison administrators, but the ‘party line’ everywhere has always been that inmates get the same level of health care as the general population.

This just isn’t true. Not only that, but these same administrators know it.

To cite only one example in the federal penal system, we had an ongoing letter exchange over a few years with an inmate in Agassiz, British Columbia. He was diagnosed with testicular cancer at one point during his sentence, and had to retain his lawyer and take Correctional Service of Canada to court in order to get the surgery he needed and the necessary after-care.

As for Ontario, we’ll go into more detail. Mary Dwyer is the current manager of health care services at the Toronto South Detention Centre. She came to our attention when she testified in early February in an action by a TSDC inmate looking for redress from the lack of proper medical care in the institution, particularly during lockdowns which are rampant there. Lauren Callighen, a spokesperson for the ministry, when asked for a comment, said, “We work hard every day to ensure that inmates receive the same access to health care in our institutions as they would in the community.” I believe firefighters were then called to her office to extinguish the flames from the lightning strike.

The court’s decision is pending in that case, but we contacted Mary Dwyer for another inmate in a similar situation at TSDC. This particular inmate had more than one health concern but of immediate import was an infected pre-molar in his fourth quadrant. He had been able to pierce the infection with a sharpened staple and was able to drain the puss every couple of days. He made two requests to see the dentist, plus a dental referral was placed in his file by a doctor at the institution. It still took almost four weeks before he got some attention. The inmate was put on penicillin for seven days and then left for another two weeks before he saw the dentist again, and the infection returned in the meantime. This has been ongoing now since the beginning of February.

I pointed out to Ms Dwyer that, in the same situation, she would have seen her dentist the day an infection became apparent. Nonetheless, her email response to mine included this: “I can say that the Toronto South Detention Centre takes the healthcare concerns of all inmates in our care very seriously.”

Consider that the Ontario Ombudsman’s 2014-2015 Annual Report noted there were 2138 health care complaints from inmates in Ontario’s jails during that reporting period. Consider that not all healthcare complaints end up crossing the ombudsman’s desk. Consider that, unlike the federal system where there is some recourse for prisoners, Ontario’s inmates have no substantive remedy other than the courts.

We did indicate this wouldn’t be a long analysis, didn’t we. Lengthy this may be, but an analysis it is not. There’s one more thing we’ll add, just for comic relief, if that’s possible.

The TSDC inmate with the abscessed tooth? In one of his requests to see a dentist, he had described how he was able to drain the infection with a sharpened staple and thereby avoid the pain that normally accompanies this kind of condition. About two weeks after submitting that request, a Sergeant Tsonga showed up at his cell to ask for his “weapon”. The institution’s security department had sent her to retrieve the staple! No kidding!

All this is but one indicator that a person consigned to a provincial jail in Ontario is no longer in Canada!

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Nelson Mandela

The Washington Post reported in mid-February that the U.S. National Registry of Exonerations had recorded 1733 cases since 1989 where wrongfully convicted people were cleared of the charges that put them in prison, and had been freed as a result.

A record number of 149 people in the United States were exonerated in 2015, up from 139 the year before.  This included 58 who had been convicted of homicide, and 5 among those had been sentenced to death.  The numbers also show there was an increase year over year in the freeing of people who had pleaded guilty or falsely confessed.

These 149 innocent people had spent an average of 14.5 years in prison.

Justice may be blind, but it can also be blinded.

Two areas of recurring concern with Correctional Service of Canada’s operation of our federal prisons came up again in February.

The first is another push for prison needle programs, reported in the Toronto Star under Alex Ballingall’s byline on February 3 (“Prison needle programs touted to reduce HIV and Hap C risk”), and Kristy Kirkup’s column on February 13 (“Health study recommends prison syringe programs”).

“No drugs in prison is an aspirational goal that isn’t really achievable,” concluded Prisoners with HIV/AIDS Support Action Network’s Seth Clarke (PASAN), published in a report released early in February. Toronto researchers, including Ryerson University’s Emily van der Meulen as lead author, PASAN, and the Canadian HIV/AIDS Legal Network hosted a conference on the subject, and later conducted interviews with health workers, inmates, and prison workers.

There are 60 existing programs in other countries, some like Switzerland’s have been running for more than 20 years, and there have been no reports of needles used as weapons. Even a 1999 Correctional Service of Canada study found needle programs “effective and well proven”.

Why should you care? Infection rates for HIV among inmates can be 10 times higher than in the general population, and Hep C can be as much as 30 times higher. At the moment, for inmates who are able to access treatment (and that can be a challenge), HIV drugs can run up to $30,000 a year, and new Hep C drugs that will cure the infection are about $60,000. This comes from your tax dollars! To boot, most inmates will return to the community where there are transmission risks, and additional drug costs; not to mention the human rights element, where prison inmates are entitled in theory to the same level of health care available to the rest of us.

Adding his voice, Howard Sapers, Canada’s Correctional Investigator, has argued that CSC should explore all harm reduction options when confronting the reality of ballooning health care costs.

There is an ongoing legal challenge against the government on this issue, launched in 2012 by an inmate in western Canada, along with community stakeholders. Government spokespersons are unable to comment openly as a result. However, the previous federal government (you remember it?) provided CSC with $120 million to fight access to drugs in prison, and while that increased interventions, is also drove up institutional drug prices. What’s left of that money could be diverted to the more progressive recommendations.

In another development, Lisa Kerr, assistant professor, at Queen’s University Faculty of Law essayed in a mid-February Globe and Mail edition (“Fewer inmates in solitary makes for case for legal reforms”) that Correctional Service of Canada has been reducing the number of inmates in segregation.

There has been no change in the law that could explain the reduction. However, the Trudeau government made it clear that it intends to implement changes on the use of solitary confinement in the face of CSC opposition to interference with its operational policies. It could be argued that CSC management is responding to the level of scrutiny and criticism of the practice in hopes passing time will diminish government oversight, thus allowing it to continue as it always has.

In both cases, prison needle programs and the reduction/elimination of solitary confinement, leaving reforms to the prison bureaucracy will bear only sour fruit. We have a federal government that is pushing evidence based policies for the benefit of all. The time to strike for new legislation and impose best practices on CSC is while our iron is hot.

In other words, now!

On the same day that U.S. President Obama banned youth solitary confinement in federal prisons (Monday, January 25, 2016), the U.S. Supreme Court expanded its ban on mandatory sentences of life in prison without parole for inmates convicted of murders committed before age 18. It argued that even those imprisoned years ago should have an opportunity to seek release.

The court’s 6-3 ruling supported Louisiana inmate Henry Montgomery, who is black and at age 17 was convicted in a 1963 shooting of a sheriff’s deputy at a time racial tensions in the area were running high. He’s spent more than half a century in prison with an automatic life sentence without parole.

An earlier Supreme Court ruling in 2012 said that mandatory life sentences without parole in homicide cases involving juveniles violated the U.S. Constitution’s ban on cruel and unusual punishment. The Monday decision ordered that the ban also applied retroactively to inmates convicted before that 2012 ruling was issued.

That means more than 1,000 people serving similar sentences in the United States could be resentenced or have an opportunity to apply for parole. This doesn’t guarantee their release. It will, however be the first time a judge will be able to take into account the qualities that may have made these under 18s less culpable than adults who committed the same crimes.

None of this is revolutionary. It’s progressive.

The Washington Post published a Barack Obama opinion piece on Monday, January 25, in which the president announced he is banning solitary confinement for juveniles in federal prisons, noting concerns about its harmful psychological effects.

Last summer, Obama directed the U.S. Justice Department to conduct a review of the practice, and this new package of changes includes an expansion of treatment for mentally ill prisoners, and an increase in the amount of time inmates in solitary can spend outside of their cells. Some 10,000 federal prisoners are affected by the new procedures that also mandate solitary confinement could no longer be used as a punishment for low-level infractions.

The move echoes a U.S. national movement demanding criminal justice reform, arising in part from numerous high-profile police killings in the last few years. Mr. Obama in particular cited the story of Kalief Browder, a black 16-year-old who was arrested in 2010 and spent almost two years in solitary in New York’s Rikers Island jail before his release in 2013 and eventual suicide two years later. The president said research suggests solitary confinement is linked to depression, alienation, withdrawal, a reduced ability to interact with others, and the potential for violent behaviour.

He noted that U.S. states have worked to cut back the use of segregation in their penal institutions and have seen drops in assaults on staff, and more prisoners engage in rehabilitation programs as a result. The president hopes the changes he’s ordered will encourage reforms in all state and local prisons. “There are as many as 100,000 people held in solitary confinement in U.S. prisons – including juveniles and people with mental illnesses,” he said. “As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell.”

President Obama wrote that solitary confinement is “increasingly overused on people…..with heartbreaking results – which is why my administration is taking steps to address this problem.”

Take that, Stephen Harper!     Justin Trudeau, pay attention!