by Renu Mandhane
In 2007, Ashley Smith died in federal custody in Kitchener, Ont., after spending extended periods of time in segregation (or solitary confinement). In 2010, Edward Snowshoe died by suicide while in custody in Edmonton, Alta., after spending 162 days in segregation. These cases have become emblematic of the incredible problems with the continued use of segregation in prisons.
However, Smith’s and Snowshoe’s cases are only unique insofar as they died while in segregation. Every year, thousands of people are placed in segregation in jails and penitentiaries across the country. We don’t know their names, their stories, or the impact that segregation has had on them. Only occasionally do their stories come to light. One such story is that of Christina Jahn, a woman with mental health disabilities and cancer who filed a human rights application alleging that she was held in segregation for more than 200 days at the Ottawa-Carleton Detention Centre because of mental health disability and gender.
The Ontario Human Rights Commission intervened in Jahn’s case, and in 2013, a historical settlement agreement was reached with Ontario’s Ministry of Community Safety and Correctional Services to improve the treatment of prisoners with mental health disabilities in Ontario’s correctional facilities. The settlement has led to major policy changes, including mental health screening for all prisoners upon admission, and prohibiting use of segregation for any prisoner with mental health disabilities barring undue hardship.
These are important steps. Yet the OHRC continues to have serious concerns about the extent of the reliance on segregation and violation of prisoners’ right to be free from discrimination under Ontario’s Human Rights Code.
The numbers paint a troubling picture. From April to August 2015, the Central-East Correctional Centre in Lindsay, Ont. placed more than 1,100 people in segregation. In the same four-month period, the Ottawa-Carleton Detention Centre placed more than 550 people in segregation. During a one-year period, four women at the Ottawa-Carleton Detention Centre were in segregation for more than 30 continuous days, and two for more than 60 aggregate days.
Systemic data about the use of segregation in both provincial and federal contexts indicates that segregation is being overused on — and causing particular harm for — vulnerable groups, such as black and indigenous prisoners, women, and those with mental health disabilities. For example, in May 2015, the federal Office of the Correctional Investigator reported that “Black inmates are consistently over-represented in administrative segregation, particularly involuntary and disciplinary placements” and that “Aboriginal inmates continue to have the longest average stay in segregation compared to any other group.”
The United Nations Special Rapporteur on Torture has found that segregation of any duration constitutes torture when used on those with mental health disabilities, and that “indefinite and prolonged solitary confinement, in excess of 15 days, should also be subject to an absolute prohibition.” The Special Rapporteur also notes that “solitary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system.”
The extent and gravity of Code concerns with the use of segregation is why the OHRC is taking the rare step of advocating that Ontario show bold leadership by publicly committing to eliminate this practice across all its institutions. This is the type of leadership Premier Kathleen Wynne’s government has shown on a number of files, such as violence against women and racism, and is poised to show in relation to prisoners’ rights as well.
Minister of Community Safety & Correctional Services Yasir Naqvi is currently conducting a comprehensive review of Ontario’s use of segregation. In response to the minister’s call for input from stakeholders, the OHRC made a submission calling for an end to segregation, and recommended interim measures, such as external oversight and strict time limits, to reduce the harm of the practice.
The time to act is now. We cannot let another prisoner die alone in a jail cell while we consider how to reform a practice that is clearly harmful and contrary to human rights law. The Ashley Smith inquest produced a slew of recommendations to significantly limit the use of segregation; but practices on the ground do not appear to have changed. It should not take legal action, such as Jahn’s human rights case or lawsuits launched in British Columbia and Ontario, to compel action.
Ending segregation is not a revolutionary, unrealistic, or aspirational idea. It is primarily one of adequate resources and political will. Naqvi has already shown bold leadership in relation to reform of policing, and we are encouraged by his review of segregation and commitment to hire thousands of correctional officers. A first step would be to promote the hiring of diverse candidates, including those with mental health expertise and a solid commitment to human rights. The minister will also have to refocus existing resources to greater utilize dynamic security, which is prison-speak for relying more on positive and supportive interactions between staff and prisoners, and less on the use of force and segregation.
Most notably, the government will have to put significant resources into mental health services and supports for prisoners, including housing those with mental health disabilities outside of the traditional prison environment and in community-based settings. This will mean psychiatrists, psychologists, social workers, counsellors as full-time staff, along with engaging programming and educational opportunities.
All of this will, of course, require sustained leadership, time and effort, and ultimately, a major cultural shift in our correctional system.
Moreover, if the government is truly committed to reforming the correctional system, it must increase funding for women’s corrections to ensure substantive equality for female prisoners. It must also disrupt the systemic discrimination that results in the over-representation of indigenous people, members of racialized communities, and persons with mental health disabilities in our criminal justice system. This means more community mental health resources, zero tolerance for discrimination in policing, and addressing the ongoing socio-economic disadvantage of racialized people and those with mental health disabilities.
The solutions are clear, albeit challenging, but the political environment is ripe for a new approach to corrections — one that is firmly grounded in equality, human rights, and human dignity. Prime Minister Justin Trudeau has committed to banning long-term segregation for federal inmates, and the OHRC hopes to see Ontario go even further by publicly committing to ending the practice altogether.
Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, is the former executive director of the International Human Rights Program at the University of Toronto’s Faculty of Law. She has worked at several domestic and international organizations.
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