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Canada's Prisons Watchdog Slams Solitary Confinement

Constitutional challenge adds to concerns over 'most austere' form of segregation.

By David P. Ball 20 Jan 2015 | TheTyee.ca

David P. Ball is staff reporter with The Tyee. Send him tips or comments by email, find him on Twitter @davidpball, or read his previous Tyee reporting here.

Canada's prisons watchdog said a constitutional challenge launched Monday over solitary confinement is likely the first of its kind to target an increased reliance on the practice, particularly for inmates with mental health conditions.

The lawsuit, filed by the John Howard Society of Canada and the B.C. Civil Liberties Association against the Attorney General of Canada, alleges that the use of prison segregation is unconstitutional and discriminatory against both mentally ill and aboriginal prisoners because those populations are over-represented among those segregated.

In particular, the lawsuit targets administrative segregation, which Corrections Service Canada defines as the separation of an inmate "to prevent association with other inmates" in cases not arising from a disciplinary decision by authorities.

It is different from disciplinary segregation, the result of a breach of prison rules, which has an oversight process and allows inmates legal counsel.

In a phone interview, Correctional Investigator Howard Sapers said while he couldn't comment further on the constitutional challenge, he agreed the government should curb the practice of administrative segregation, for which no disciplinary hearings, time limits or external reviews apply.

"Every year we deal with cases where, for all intents and purposes, individuals are under indefinite segregation," he said. "Segregation is supposed to be used for the shortest period of time. It's the most austere form of confinement we have in Canada."

According to a 2013 report on solitary confinement published by Sapers' office, nearly one-quarter of all federal inmates spend some time in segregation over the previous two years. Nearly one in six of those spend more than four months in the hole; more than half spend a month or more there.

Sapers also found that between 2011 and 2012 there were 8,700 placements into segregation, a 6.5 per cent increase over five years. The report found that an average of 850 prisoners -- or nearly six per cent of all federal inmates -- were held in segregation at any given time.

Of all inmates held in solitary, only two per cent resulted from any disciplinary decision. The rest were under administrative segregation. The Office of the Correctional Investigator has since dubbed administrative segregation a "prison within a prison."

Public Safety ministry spokesman Jason Tamming stated in an email that Correctional Service Canada "uses all of its tools to make sure the corrections system actually corrects criminal behaviour, including the use of segregation," adding that the government's focus would remain on the victims of crime. 

Confinement 'cruel and unusual'

Reiterating a major recommendation of his 2013 report on solitary confinement, Sapers also called for a ban on administrative segregation for people with "professionally diagnosed mental illness," or who have a history of self-injury.

A concern for inmates with mental health issues was echoed by one of the lawyers who filed Monday's lawsuit, Alison Latimer with the firm Farris, Vaughan, Wills & Murphy LLP.

"A better way to deal with those prisoners is in a mental health context, because they're ill," Latimer said in an interview. For other prisoners, she acknowledged "there may be a need to use segregation, but if there is such a need it needs to be a last resort." Such use of segregation should require external oversight and time limits, she said, as is required for disciplinary segregation.

John Howard Society of B.C. executive director Julia Payson said that administrative segregation doesn't only impact inmates who are incarcerated with existing mental health conditions.

Payson cited as evidence of "cruel and unusual punishment" the deaths of two inmates with mental health issues while in segregation: 24-year-old Northwest Territories inmate Edward Snowshoe in 2010, after spending 162 consecutive days in solitary, and 19-year-old Ontario inmate Ashley Smith three years earlier, after spending more than 1,000 days in segregation.

In December 2013, an inquest jury into Smith's death ruled her self-choking death a "homicide" and recommended an end to "indefinite" solitary confinement.

Last month, the federal government rejected its major recommendations, warning that ending segregation would pose an "undue risk to the safe management of the federal correctional system" and insisting it had already made improvements to its review and oversight mechanisms for segregated offenders.

For the two organizations that sued the federal government Monday, those changes are not enough to prevent future death and suffering in solitary cells.

"In solitary confinement, people end up with psychosis, they can end up with hallucinations, mental confusion, breakdowns," Payson said. "All of these things are exacerbating behavioural issues that had them go into solitary confinement… People may leave prison with worse mental health illness, or they may even exit with a new mental health illness because of the conditions inside solitary confinement."

That, she argued, has a long-term impact on the prisoner's ability to reintegrate into society after they served time.

As Monday's constitutional challenge heads to B.C.'s Supreme Court in hopes of forcing federal action, prisons watchdog Sapers vowed to continue pressing the issue of solitary confinement in his role as ombudsman.

"There needs to be more accountability around prolonged and continuous segregation," he said. "There need to be upper limits so there is no longer indefinite segregation."  [Tyee]

Read more: Rights + Justice

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