Three days before her death, Ashley Smith, an inmate in Kitchener's Grand Valley prison, asked to be taken to a psychiatric facility. Instead, she was placed under suicide watch in a segregation cell — solitary confinement. Though guards were watching on video monitors, the 19-year-old used a strip of cloth to take her own life. She was pronounced dead early on the morning of Oct. 19, 2007.
It has been just over nine years since Smith died in that cell, sparking uproar across the country (particularly after disturbing video of her treatment in her final hours was released); nearly three years since an inquest into her death published 104 recommendations to improve prison conditions, especially for inmates suffering from mental illness and for women; and one year since the Liberals took office. Shortly after his election, Prime Minister Justin Trudeau told the public the inquiry's recommendations would finally be addressed.
And yet, almost nothing has been done.
Since the Smith inquiry, Canada's correctional officer and inmate ombudsman, Howard Sapers, has been responsible for publishing an annual update on the progress the Correctional Service of Canada and the Ministry of Justice have made in implementing the inquest's recommendations. Each time, he has expressed frustration, described a lack of progress, and reinforced the importance of implementing recommendations such as prohibiting the long-term segregation of “mentally disordered offenders” and moving to a restraint-free environment. (This can include both physical restraints, such as being strapped to a chair, and chemical restraints, as in the use of sedatives.)
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“[Correctional Service Canada]'s response was frustrating and disappointing,” Sapers wrote in his 2015-2016 report. “Since most of the recommendations were not answered individually, much less substantively, there seems little practical value in my office issuing an annual public progress report.”
The year before: “The response fails to specifically address individual jury recommendations. This approach makes it difficult to know which recommendations are endorsed and supported versus those that have been rejected, ignored, or supported only in part.”
Sapers, recently appointed to head up an independent review of segregation in Ontario jails, told TVO.org, “I continue to be frustrated with the nature of the response from the government over the last number of years. I found that the response was not clear, was not focused and not robust.”
Confused, paranoid, and agitated
While administrative segregation — used to protect an inmate's own safety, maintain the safety of the institution, or ensure there is no interference with an ongoing investigation — did decrease in federal institutions by about 20 per cent last year, it is still being used too often, specifically with women with mental health needs, experts say. This is compounded by the fact that there is no limit on the time an inmate may be kept in administrative segregation.
Institutions also use disciplinary segregation as a punishment for incidents ranging from disrespect to violence: an institutional hearing is conducted to determine whether it is appropriate, and the length of the time in segregation, with an upper limit of 30 days. This differs from administrative segregation, in which no hearing is required: instead an institutional head reviews the request to place an inmate in solitary confinement (sometimes after the inmate has already been placed there), and a review board reconsiders the placement after five days. It is supposed to revisit the necessity of the placement every subsequent 30 days, but the inmate can stay in segregation for an extended period.
It is easier to put someone in administrative segregation, Sapers says, which he thinks has contributed to it being used far more than disciplinary segregation. He said he’s also concerned that, without a legislative cap, administrative segregation leaves inmates in solitary confinement for much longer periods.
Multiple studies have shown that segregation, particularly extended stays, can have a major effect on mental health. Solitary confinement can leave an inmate confused and paranoid, and can lead to “intense agitation and random, impulsive, often self-directed violence,” according to a 2006 report from the Washington University Journal of Law and Policy.
“In addition, solitary confinement often resulted in severe exacerbation of a previously existing mental condition.”
Inmates in administrative segregation are twice as likely to have a history of self-injury and attempted suicide, and 31 per cent more likely to have a mental health issue than the general inmate population, according to the 2015 Correctional Investigator of Canada report.
“We are still faced with many of the same challenges," Sapers says, "and those challenges often have to do with the health-care needs of the women involved and with the capacity of the Correctional Service of Canada to meet those needs.”
Three other women have died in federal custody since the Ashley Smith recommendations were released — one in a segregation cell next to the one Smith died in nearly a decade ago. Terry Baker, 30, took her life at Kitchener’s Grand Valley Institution in July.
The other two also had multiple stays in segregation.
Veronica Park, 38, died in April 2015 from a health-related issue while incarcerated at Nova Institution in Nova Scotia; an inquest into her death is pending. Camille Strickland-Murphy, 22, took her life — she had made a previous attempt eight days before — in July 2015, also at Nova.
Park and Strickland-Murphy’s families are each suing the federal government for wrongful death, saying the prison failed to provide proper physical and mental health care, which was exacerbated by their stints in segregation.
Park’s family (in their statement of claim, which has not been proven in court) says she went to the prison’s clinic multiple times before her death but the nurses didn’t consult a doctor or other emergency services. The Strickland-Murphy lawsuit, meanwhile, alleges she set her own leg on fire, and was subsequently reclassified as a maximum-security prisoner instead of being treated in a mental health unit. The Elizabeth Fry Society, which works with and for women in the justice system, is concerned that neither woman received adequate or timely access to medical assistance.
'Cruel and unusual punishment'
Solitary confinement has been used in Canada since confederation, but it fell out of favour in North America in the late 1800s. In 1890, a U.S. Supreme Court ruling described the effects of solitary confinements, writing, "A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition ... others became violently insane; others, still, committed suicide." However, it eventually began to creep back into the prison system as a way to manage the inmate population.
“Perhaps it was a reduction in some of the other tools that CSC used to use. It’s fairly recently that they stopped using corporal punishment,” says Catherine Latimer, executive director of the John Howard Society.
“There were fewer ways in which to discipline inmates. So perhaps they are having to rely on this more and more.”
In 1975, a group of prisoners from the British Columbia penitentiary said their confinement constituted cruel and unusual punishment. In McCann et al. v. the Queen and Dragan Cernetic, the court ruled that the placement of the inmates in the special correctional unit — segregation — was an administrative and not a judicial decision. It continued to become a widely-used response in prisons, and in 2015 the Ottawa Citizen reported that there was an inmate in Canada who had spent 6,273 consecutive days alone in a cell.
That’s roughly 17 years.
Latimer added that segregation has also been used more as the number of inmates has increased.
“Correctional services will tell you that they’d prefer vacancy rates for maximum security prisons be about 80 per cent and 85 per cent for medium and minimum, and this allows them incompatibility issues and things by moving people onto different ranges,” she says. “As the population increases and they have less flexibility in terms of movement they may be having to rely more on segregation to deal with incompatibility issues that they used to address by moving people to different ranges.”
Ashley Smith spent two-thirds of her youth custody time — about three years — in segregation.
Among the key recommendations issued by the inquest into her death: a ban on indefinite solitary confinement. Correctional Services Canada responded to the recommendations a year later, saying they were developing a strategy to reduce the reliance on solitary confinement, but rejected any action on limits to administrative segregation, saying, “the Government is unable to fully support [it] without causing undue risk to the safe management of the federal correctional system.”
Other recommendations included visits by institutional heads to all inmates in segregation or medical observation at least once a day, a shift toward a restraint-free environment, and that female inmates be accommodated in facilities closest to family and social supports. While there has been a reduction in segregation following the inquest, and Correctional Service Canada has begun pursuing some recommendations with regards to women with complex mental health needs, including studying the use of psychotropic medication and implementing regional and national health committees, generally experts are disappointed with their response.
“I think part of why, at this particular moment, despite that clear direction to the justice minister, we have not seen those changes, we have not seen Correctional Service Canada implement the Ashley Smith recommendations, my sense is that they will be interpreting for themselves what the Ashley Smith recommendations mean,” says Lisa Kerr, an assistant professor of law at Queen's University.
“But I certainly hope that they implement, without revision, the time limit for segregation for any offender and the prohibition of the mentally ill in segregation, the complete prohibition.”
Latimer added that the John Howard Society is also calling for independent impartial oversight over the entire process of solitary confinement. “And it needs to start early. No later than the first 72 hours [after an inmate is placed in segregation].”
A way forward
To tackle the inquiry's recommendations more substantively, the government would need to fulfill its promises to restrict the use of solitary confinement in general; modify the treatment of those with mental illness by providing more access to health care, specialists, and treatment; and abolish indefinite solitary confinement (the recommendation was to allow no more than 60 days of segregation in a single year). It also needs to commit to the recommendation about transferring inmates with mental health issues or those who self-injure to federally operated treatment facilities, “not a security-focused, prison-like environment,” as is often the case.
Rebecca Jaremko Bromwich, author of Looking for Ashley: What the Smith Case Reveals About the Governance of Girls, Mothers and Families in Canada, teaches law at Carleton University. She says that too often Smith’s death is described as anomalous, but it’s actually quite typical of the Canadian corrections system.
“There have been in-the-hundreds of people who have died in custody since 2007 — many of them in similar conditions, in segregation, in solitary confinement or a long trajectory of escalating exclusions and escalation of administration of justice issues.”
A systematic review by the Office of the Correctional Investigator conducted in 2015 and 2016 looked at 48 case studies of federally incarcerated women with complex mental health needs. Seventeen of them had spent time in segregation within the past year, one for more than 70 days. Overall, the study found more than half of women inmates had an identified mental health need and 26 per cent of incarcerated men were similarly affected. (In the general population, about 25 per cent of women require mental health care, compared with 14 per cent of men.) While the Smith inquest paid specific attention to the needs of federally incarcerated women, its recommendations would also have an impact on male inmates, as they would alter correctional practices across the board.
But Bromwich is hopeful that an upcoming review of Canada’s justice system, conducted by the justice minister starting in January, will finally address the Smith inquest recommendations, specifically around segregation and women with mental health issues.
“I think I have to be optimistic because otherwise, why bother?”
Sapers agrees, saying he’s hopeful that some of those recommendations may finally be addressed. “I wouldn’t necessarily be looking for a checklist that lists the 104 specific recommendations and then has a ‘yes’ or ‘no’ box to check off. These things are interrelated, they are complex.
My advice is really to look for some key features around things like the use of segregation, around things like access to psychiatric care, around things like involuntary transfer — and if you look at some of those key issues you will have an easier pathway to achieve progress.”
As the ninth anniversary of Smith’s death came and went without significant legislative changes, Bromwich said she could see herself in the young woman.
“[Smith] would have been 28 if she was alive; she was just a bit younger than me. I think of all the things I have been able to do since I was a teenager who got in trouble,” Bromwich says.
“I think about what she could have done, how she could have contributed, who she could have been by now, how she could have been one of my students at the university; and she never got to do those things. And we never got a chance, as Canadians, to benefit from her as a contributing member of society.”
Geraldine Malone is a Munk Global Journalism Fellow who covers Indigenous communities and the penal system.
Read: How would you prepare for prison – a compendium of articles and videos on the topic of the Canadian correctional system.