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30 March, 2017
Katrina Kairys (1L) & Jeremy Greenberg (1L)
Imagine sitting alone in a small room. There are no windows. It’s cold. The glaring fluorescent lights shine down on you 24 hours a day. You wish you could switch off the lights, but you can’t. You wish you could speak to someone, but you can’t.
For 1,560 days, this was the life of Adam Capay, a young indigenous man imprisoned in Ontario. News of Capay’s solitary confinement surfaced in October 2016. When Renu Mandhane, Ontario’s Chief Human Rights Commissioner (and former IHRP Director), discovered Capay, he told her he was having trouble speaking because of a lack of human interaction.
On January 10, 2017, the University of Toronto’s Faculty of Law hosted a panel discussion on solitary confinement in Canada. Professor Kelly Hannah-Moffat of the U of T Centre for Criminology and Sociolegal Studies addressed the challenges of studying the federal penitentiary system and the inhumane conditions of segregation. Insiya Essajee, Counsel at the Ontario Human Rights Commission (OHRC), highlighted the issues specific to segregation in the province. Speaking about segregation in the context of immigration detention, Andrew Brouwer, Senior Legal Counsel at the Refugee Law Office of Legal Aid Ontario, discussed the deplorable conditions that detainees experienced in both provincial jails and immigration holding centres.
What is solitary confinement?
The United Nations Mandela Rules define solitary confinement as “the confinement of prisoners for 22 hours or more a day without meaningful human contact.” Solitary confinement in excess of 15 days is prohibited under the UN Rules, and, according to the UN Special Rapporteur on torture, can amount to “cruel, inhuman, or degrading treatment.” The Special Rapporteur has recommended that solitary confinement be implemented for as short a period as possible, and banned for juveniles and people with mental disabilities.
In 1987, Canada ratified the United Nations Convention Against Torture, committing to take effective measures to prevent torture and cruel treatment. Despite this, the OHRC reported that from October 2015 to December 2015, nearly 1,400 instances of segregation in Ontario were sufficiently long to potentially constitute “cruel, inhuman or degrading treatment” based on UN standards.
The Federal Correctional Regime
In Canada, solitary confinement is commonly referred to as segregation. Correctional Service Canada (CSC) identifies two categories of segregation in federal institutions. “Disciplinary segregation” is a punitive sanction imposed upon inmates guilty of a serious disciplinary offence, with a maximum duration of 30 days. “Administrative segregation,” on the other hand, is imposed to “protect the safety and security of individuals and the institution,” and may continue until the underlying concerns are resolved.
The regulations governing segregation in federal penitentiaries require correctional institutions to carry out regular review hearings of administrative segregation. If inmates are not satisfied with the warden’s decision to continue segregation or with the conditions of confinement, they may submit a grievance pursuant to the Corrections and Conditional Release Act. “Unfortunately, most prisoners have completely lost faith in the grievance system,” explained Professor Hannah-Moffat. Hannah-Moffat said that prisoners do not see increasing external oversight measures such as secondary review for grievances as helpful. According to a 2008 review by Howard Sapers, the Correctional Investigator of Canada at the time, CSC failed to adequately address the numerous complaints from Ashley Smith, who tragically died in her segregation cell. Sapers criticized CSC for its unnecessarily adversarial and punitive responses to Smith’s complaints, as well as its lack of vigilance.
Hannah-Moffat explained that segregation is not only a place for dangerous inmates, but also for those who are at risk of injury or suffer from mental illness. Others may request to be in segregation because, for them, it is a safe space. But it makes one think. “How horrid are the living conditions in custody that somebody wants to be in a segregation cell?” asked Hannah-Moffat.
The Conditions in Federal Segregation
Professor Hannah-Moffat has spent years studying the conditions of solitary confinement and its negative effects on inmates. Typically, inmates are segregated for up to 23 hours at a time. Hannah-Moffat explained that segregation conditions vary greatly, but the typical unit is about the size of a parking space and has a solid cell door with a meal slot. Cells with windows are few and far between. Aside from a bed and toilet, the inside is empty, a security measure meant to prevent inmates from self-injury. However, Hannah-Moffat explained that some cells still contain porcelain toilets and other objects with sharp edges that could be used for self-harm.
According to Hannah-Moffat, access to programs, services, and visitors varies depending on the institution and who is working there at the time. While a prisoner may be scheduled to have a shower or recreation time, there may not be enough staff on hand to get him or her there. “Recreation is not like going over to U of T’s Goldring Centre,” said Hannah-Moffat. “The recreation room for prisoners in solitary is a concrete box with a little bit of light coming in from the top. Prisoners get to walk around in a circle. Alone.” Hannah-Moffat explained that meal slots are the main means of communication. Meetings with psychologists often happen through that slot.
Unsurprisingly, there is consensus among researchers that solitary confinement is damaging. Hannah-Moffat explained that the inmates are completely alone and nobody is engaging with them while in segregation. “It’s a vicious cycle,” she said. “We’re expecting the person to learn and behave differently when they come out, but there is absolutely nothing about being in segregation that aids this process.”
The Segregation System in Ontario
Unlike the federal penitentiary system, the provincial system is designed for short stays and has a transient population. Nevertheless, Insiya Esajee, counsel at the OHRC, explained that people are staying in the system for much longer than originally anticipated. Moreover, many inmates are often placed in segregation after being remanded into custody prior to trial, meaning that they spend time in segregation without having been convicted of a criminal offence.
Regulations under the Ontario Ministry of Correctional Services Act provide for frequent reviews of segregation. Unfortunately, these regulations are not strictly followed, and reviews are often incomplete, or cursory at best. The Ontario Ombudsman reported that segregation reviews are only conducted, on average, every 20 days—a period four times longer than required by the regulation. Furthermore, placement confirmations are not adequately justified, with most reviews citing “security” as the sole reason for continued confinement.
Discrimination in Ontario Segregation Practices
The OHRC approaches problems in the correctional system through a discrimination lens. The Ontario Human Rights Code, which the OHRC is charged with administering, prohibits discrimination through services, including the Ontario prison system. Insiya Essajee explained that the Commission seeks to address both systemic discrimination and indirect discrimination with respect to segregation. In terms of systemic problems, the OHRC considers whether segregation is used in a disproportionate way for certain marginalized groups. The Commission also examines whether segregation disproportionately harms certain groups. A neutral policy that does not specifically target those with mental illness may nevertheless have a greater impact on those individuals than on others.
Provincial Segregation Data
One of the major challenges facing Ontario is the lack of information pertaining to segregation practices. While data are available in other provinces, information from Ontario is incomplete and often merely anecdotal. The OHRC has asked the province to provide data on segregated individuals, disaggregated based on human rights grounds, but the Ministry of Community Safety and Correctional Services responded that it does not collect such information. “We want to know how many people are placed in segregation, and how that breaks down based on gender, race, and disability, and how those statistics match up to the general prison population,” said Esajee.
Statistics from the MCSCS’ Provincial Segregation Review provided the OHCR with “a snapshot of three months,” said Esajee, “and what it highlighted for us was the concern that Adam Capay’s situation is not an isolated incident.” In that three-month period, approximately 20,000 people flowed through the prison system, and over 4,000 were held in segregation at some point.
Despite MCSCS policy that inmates with mental illness should only be placed in segregation after alternatives have been considered, over 40 per cent of those people had mental health alerts on their file. Additionally, the OHRC believes that these “alerts underestimate the number of prisoners with mental health disabilities. Essajee explained that the alerts only deal with people who “have a mental health issue that poses a management concern.” She explained that someone could have a mental health illness or developmental disability, but if it does not cause a disruption to the management, then there would not be an alert on that person’s file. It is, at best, an incomplete classification system, and many people are slipping through the cracks. Consequently, there is a failure to adequately consider inmates’ mental health issues when they are placed in segregation.
The future of segregation in Ontario
Essajee pointed to Ontario Ombudsman Paul Dubé’s recent report on the state of segregation in Ontario as a hopeful sign that the government is thinking critically about these issues. Dubé’s report sets out 28 recommendations now under consideration by MCSCS. Key recommendations include that the province limit segregation periods to a maximum of 15 consecutive days, and that no inmate should serve more than 60 days of segregation per year. The report also recommends more rigorous psychiatric assessment, stronger efforts to reintegrate inmates into the general prison population after segregation, and independent oversight of segregation placements.
Meanwhile, the OHRC continues to push for better data collection and transparency. The Commission has released statistics on segregation use provided by MCSCS, and has spoken out publicly about Capay’s case. Howard Sapers, who previously served as Correctional Investigator for the federal system, has been appointed as Independent Advisor on Corrections Reform to the Ontario government. He is tasked with reviewing segregation in the provincial system.
In the wake of the attention surrounding Capay’s case, the Minister of Community Safety and Correctional Services for Ontario resigned in December 2016. Esajee believes that new leadership could have a powerful effect on the systemic problems. “Going forward, we can expect increased litigation and inquests relating to the problematic circumstances that keep arising around segregation,” said Esajee.
What can law students, and Canadian citizens more generally, do to voice their concerns with the system? Engage in advocacy, according to Esajee. Grassroots advocacy, in particular, is critically important. “It’s such an invisible population and not a terribly sympathetic one, but right now we have this window of opportunity where people know a bit more about these issues,” said Esajee. Law students and citizens alike should write to the Minister of Community Safety and Correctional Services and the Attorney General to voice their concerns and communicate what changes they would like to see.
“We must keep the fire stoked,” said Hannah-Moffat. Sensational cases like Adam Capay’s draw significant scrutiny, but the attention soon fades. “After there have been recommendations and inquests, we think the problem is solved, but that’s not the case.”
Since Adam’s case came to light, there have been increased calls for change in both federal and provincial correctional facilities. Thorough external oversight and comprehensive independent reviews may be the catalyst for improvement. However, both the federal and provincial systems have a long way to go. Investigators’ recommendations must be put into action. Only then will cases like that of Adam Capay become a thing of the past.