In December 2017 and January 2018, trial courts in Ontario and British Columbia declared legislative provisions authorizing prolonged solitary confinement (officially termed “administrative segregation”) unconstitutional.
Justice Marrocco, for the Ontario Superior Court, found that the appropriate remedy was to declare that sections 31–37 of the Act did not authorize administrative segregation after the fifth working day, as the Act did not provide sufficient procedural protections to guard inmates’ section 7 rights.
Justice Leask, for the Supreme Court of British Columbia, found violations of both section 7 and section 15 of the Charter. He declared that the impugned provisions were invalid under section 7 to the extent that they: authorized and effected prolonged, indefinite administrative segregation; authorized the institutional head of a prison to be the judge and prosecutor of his own cause; authorized internal review; and deprived inmates’ right to counsel at segregation hearings and reviews. He declared that they were invalid under section 15 to the extent that they authorized any period of administrative segregation for the mentally ill/disabled, or authorized a procedure that resulted in discrimination against Aboriginal inmates.
A number of high-profile cases brought the issue of prolonged solitary confinement into the public eye in recent years. In 2007, Ashley Smith died in a segregation cell after spending more than a year in uninterrupted solitary confinement in federal institutions. Despite her documented troubled past in the juvenile system, the federal system failed to provide her with a comprehensive mental health assessment or treatment plan. Rather, she was placed in administrative segregation immediately upon entering the federal system and kept there indefinitely. Her segregation status was not reviewed, as required by the Corrections and Conditional Release Act, because her segregation status was erroneously lifted every time she was physically moved from one CSC facility to another, or temporarily admitted to a psychiatric facility. In a report, the Office of the Correctional Investigator pointed to abuse of administrative segregation as contributing to Ashley Smith’s death.
The Act provides for two types of segregation: administrative segregation and disciplinary segregation. Disciplinary segregation is punitive: it follows a disciplinary proceeding for a serious offence, but it comes with greater procedural protections. It is limited to thirty days for a single offence or forty-five days for multiple offences. Administrative segregation is not punitive but is not subject to a cap and did not—until now—attract the same procedural safeguards as disciplinary segregation.
Justice Leask referred to a 2014–15 report by the Office of the Correctional Investigator (OCI), which stated that that the administrative segregation framework was “used as a punitive measure to circumvent the more onerous due process requirements of the disciplinary segregation system.”
Both decisions referenced the Mandela Rules—the most recent version of the United Nations’ Standard Minimum Rules for the Treatment of Prisoners. The Mandela Rules prohibit both indefinite and prolonged solitary confinement, defining solitary confinement as confinement for twenty-two hours or more a day, and prolonged solitary confinement as that in excess of fifteen consecutive days. Justice Leask found that this was a generous but defensible standard.
Findings on Effects of Solitary Confinement
Both judges—but especially Justice Leask—made a number of findings about the adverse effects of solitary confinement. Both found that solitary confinement can alter brain activity, with the harmful effects of sensory deprivation caused by such confinement appearing as early as forty-eight hours into segregation. Justice Leask found that administrative segregation placed inmates at significant risk of psychological harm and increased incidences of self-harm and suicide (specific harms included anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, rage, paranoia, self-mutilation, and suicidal thoughts and behaviour).
Justice Leask found that many inmates were likely to be permanently harmed by the confinement, although the most acute symptoms are likely to be reduced upon removal from segregation. As a result of these problems, he held that the provisions engaged inmates’ section 7 rights to life, liberty, and security of the person.
Justice Leask noted a number of times that the indeterminacy of administrative segregation placements added to the pain, frustration, and depression that accompanied those placements. Expert witness Dr. Haney explained: “[p]risoner after prisoner subjected to this pernicious form of segregation has told me that the fact that they have no way of knowing when their suffering will end, and no way of hastening its end, leads to anger and to a deep sense of helplessness.”
The principles of fundamental justice include a guarantee of procedural fairness. Much of the Ontario decision focussed on the serious lack of procedural fairness, especially the right to an impartial decision-maker, in reviewing a decision to segregate.
The existing statutory regime was found to “permit […] the warden to quite literally be the judge in his or her own cause with respect to placement decisions.” This is because the Institutional Head would make the decision to place someone in segregation, and although the Act calls for a review within five working days of that decision, the Institutional Head would decide the membership of the reviewing board, which would then make its recommendation to the Institutional Head. There is no independent review mechanism whatsoever, despite many previous calls for independent adjudication (both in reports and in the Mandela Rules). Justice Marrocco called this obvious conflict “an anomaly even within the context of penitentiary decision making.”
BC Court Goes Further
Both decisions declared the requirement for an independent review of the decision to segregate, but parted ways on what constitutes such a review. Justice Marrocco rejected the suggestion that an independent review could not be conducted by the Correctional Service of Canada (CSC). He found that a review could be independent and impartial as long as the reviewer was not chosen or influenced by, and did not report to, the person whose decision is being reviewed, and if the reviewer is able to substitute its decision for the decision under review.
Justice Leask disagreed, holding that the evidence led in the case had demonstrated CSC’s inability to fairly review segregation decisions. He held that the party undertaking the independent review must also be independent of the CSC. He noted that core principles of fundamental justice require “that the rule of law must prevail inside Canadian penitentiaries, and that justice must be an essential condition of corrections.”
Breach of Section 15
While the Ontario decision’s analysis was limited to section 7, the British Columbia decision further considered section 15. Justice Leask found that the administrative segregation framework was especially flawed in its treatment of two groups: mentally ill or disabled inmates, and Aboriginal inmates.
According to the 2014–15 OCI Report, administrative segregation is commonly used to manage mentally ill and self-injurious inmates as well as those at risk of suicide. Justice Leask found that inmates with mental disabilities are over-represented in administrative segregation, which has disproportionately harmful effects on the mentally ill. He found that a recent Commissioner’s Directive aimed at excluding these inmates from administrative segregation was vague and unduly narrow, rendering it inadequate to address the issue of their over-representation in administrative segregation. He found that, since the CSC does not keep any data on the number of mentally ill inmates in the system, it could not conduct strategic planning with respect to them. As a result, the Act and the Commissioner’s Directives failed to respond to the needs of mentally ill inmates and instead imposed burdens on them that reinforced their disadvantage. They were, therefore, in breach of section 15.
With regards to Aboriginal inmates, he found that they are even more greatly over-represented in administrative segregation than they already are within Canadian federal prisons. He further found that that their average length of stay in segregation was greater than that of Black or Caucasian inmates, and that a third of Aboriginal inmates spent part of the fiscal year in segregation as opposed to one-quarter of non-Aboriginal inmates. The CSC had failed at using Aboriginal social history to reduce the impact of administrative segregation on Aboriginal inmates, a requirement set out by R. v. Gladue in the sentencing context, and extended—at least formally—to the correctional decision-making context by the CSC. In the Judge’s words: “There is a box to be ticked on a form and it is ticked. Meaningful results have not followed.”
A Ways to Go
These decisions concerned the federal administrative segregation framework, but provincially-run facilities are vulnerable to the same criticisms in the way that they use administrative segregation. In fact, provincial cases can often be even more jarring since inmates may be placed in segregation without ever having been found guilty of a crime. In 2016, the case of Adam Capay made headlines when it was revealed that he had spent 1,560 days in solitary confinement in pre-trial detention. Capay had been placed in an empty cellblock with no windows, and the lights were kept on twenty-four hours a day. When Renu Mandhane, Ontario’s chief human rights commissioner, met Capay in jail, he was losing his ability to speak and was having trouble discerning night from day.
While Ontario promised to reform its correctional system in its entirety last fall, the only sign of action so far has been an announcement that inmates with mental illnesses will no longer be placed in solitary confinement, in response to a order by the Human Rights Tribunal.