Beginning of the end for solitary confinement in Canada?

By Kyle Kirkup, Special to TVO.org - Published on March 18, 2016
If the federal government does not act quickly on solitary confinement, the courts may force the issue.

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There are telltale signs across the country that the widespread use of solitary confinement, a practice the United Nations Special Rapporteur has called a form of torture, may be coming to an end.

As an immediate response to the human rights violations experienced by people who are placed in total isolation for up to 23 hours a day, efforts to end practices of solitary confinement are welcome. But a more fundamental transformation — one where we stop using police, Criminal Code offences, mandatory minimum sentences and prisons to solve social problems — is required.  

Last week, Correctional Investigator for Canada Howard Sapers tabled his annual report, painting a bleak picture of the federal prison system. Over the past decade, the number of black people in custody has grown by almost 70 per cent. The indigenous prison population has more than doubled. The numbers reveal an uncomfortable truth: our criminal legal system reflects and perpetuates widespread inequality.

Among its 18 recommendations, the report calls on the Correctional Service of Canada to significantly limit the use of solitary confinement, prohibit its use for younger offenders and inmates who are mentally ill, impose a ceiling of no more than 30 continuous days, and introduce independent oversight mechanisms for any period of solitary confinement that lasts more than 30 days. The Correctional Service of Canada responded by saying it would propose legislative amendments on the practice to Ralph Goodale, the Minister of Public Safety and Emergency Preparedness. There is no timeline for these proposed changes.

If the federal government does not act quickly, the courts may force the issue. In January 2015, the B.C. Civil Liberties Association and the John Howard Society launched a constitutional challenge to solitary confinement in Canada’s federal prisons. They argue that the practice violates the charter right to life, liberty and security of the person, along with the right not to be subject to cruel and unusual treatment or punishment. If the groups are successful, the court may require the federal government to redraft the Corrections and Conditional Release Act in a way that imposes time limits and independent oversight mechanisms on practices of prisoner isolation.

There is also considerable pressure to reform solitary confinement in provincial and territorial jails. The provinces and territories are responsible for housing individuals awaiting a further court appearance, along with those serving sentences of less than two years.

Last month, the Ontario Human Rights Commission called for the end of solitary confinement in the province’s jails. Echoing the findings of the federal Correctional Investigator’s report, the commission expressed concern that solitary confinement is “disproportionately used on, and has particularly harmful effects for, Code-protected groups such as Black and Indigenous prisoners, prisoners with mental health disabilities, and women.” It called for strict time limits and external oversight to reduce the discriminatory effects of solitary confinement if the practice were to continue.

Earlier this week, Ontario’s Minister of Community Safety and Correctional Services, Yasir Naqvi, indicated that the provincial system is under significant pressure largely because of policy decisions made by the former Conservative government; with the introduction of new Criminal Code offences and new mandatory minimum sentences, the number of people in provincial and territorial jails has risen dramatically. The number of people in Ontario’s jails waiting for a court appearance, for example, has doubled over the past decade. With this growth comes pressure on the system and deteriorating prison conditions. With few options in a system bursting at the seams, prison administrators invariably turn to solitary confinement.

Canada prides itself as being a country committed to protecting human rights. Its treatment of people in prison, particularly those who are placed in solitary confinement, is an abysmal failure. There is a large body of literature demonstrating that long-term solitary confinement can exacerbate mental health issues and increase the risk of self-harm — the stark reality is that nearly half of all suicides in Canadian prisons occur in solitary confinement. 

As we consider reform strategies, however, it is important that we not lose sight of a simple fact: another way to reduce the number of people in solitary confinement is to stop putting so many people in prisons in the first place.

Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. 

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