Dawn Moore is an associate professor in the Department of Law and Legal Studies at Carleton University
A year ago, the Coroner's Inquest into the death of Ashley Smith returned its verdict of homicide, recommending 104 changes. On Thursday, the Correctional Service of Canada (CSC) released its response. The opportunity to take responsibility and right decades of wrongs was lost, and CSC ultimately failed its human rights obligations to ensure not one more Ashley Smith, not one more Edward Snowshoe.
Undoubtedly driven by the federal government's refusal to sign on to the Optional Protocol to the Convention Against Torture, which would limit time in solitary to 15 days, CSC refused caps on solitary confinement. Informed by the Canadian Medical Association, as well as a battalion of research from around the world, CSC acknowledged even short periods in solitary can lead to long-term and, in some cases, irreversible mental and physical health problems. Still it explicitly rejected calls for limitations, intimating that 'administrative segregation' really isn't that bad (a tacit admission to the brutality of the cognate practice of disciplinary segregation). While the Corrections and Conditional Release Act allows comforts like television, visits, books and occasionally time out of one's cell, all of these privileges can be and are often discretionarily removed. Visits can be cut off and cells stripped bare save for a mattress because a prisoner complains about the food. Cruel and unusual punishment is always a capricious step away for those like Ashley Smith serving indefinite terms of administrative segregation.
Citing the assessment tools CSC uses to designate a new prisoner's level of risk and need – and, consequentially devise a correctional plan – CSC celebrates its partnerships with some of the most respected mental health facilities in the country. By its own numbers, of the 18,000 or so people currently incarcerated by CSC, 200 women and just fewer than 3,000 men have mental health problems. CSC has a total of 34 beds for women in psychiatric treatment facilities and an undisclosed number of beds for men in carceral treatment facilities scattered behind prison walls across the country, each of which offers a 'safe and supportive environment' for mentally ill prisoners.
There are three fatal flaws to the rosy picture CSC paints of its mental health care system. First, critical scholars roundly discredit the assessment tools. They are biased against women, Aboriginal and ethnically diverse prisoners, meaning in all likelihood those who fall into these categories are likely to be subject to greater security interventions and increased monitoring – a problem subjected to a successful human rights complaint almost a decade ago. Second, the numbers, especially for women, do not even come close to meeting the need. In the wake of Ashley Smith's homicide, CSC increased psychiatric beds for women by two.
Finally, penal treatment centres are far from safe and supportive. I watched a man wearing a paper gown, crouched on a concrete floor, discussing his mental health status and treatment plan through his meal slot. How can a psychiatrist whose face is only fractionally visible to someone who will likely spend his entire sentence in solitary provide safe and supportive care?
CSC concludes its rebuttal citing multiple mechanisms through which penal authorities are held accountable. The problem is none of the bodies, not the Office of the Correctional Investigator or the Citizens' Advisory Committees or even the Auditor-General have any enforcement capacity. They are limited to recommendations which, like the Coroner's Inquest, CSC has a history of refuting or ignoring.
The venerable Mme. Justice Louise Arbour declared almost 20 years ago that the Canadian penal system has a pervasive culture of lawlessness in which rules are everywhere but the rule of law is invisible. The closed nature of prisons creates a perfect environment for egregious human rights abuses to take place of which Ashley Smith's case is only the tip of a very large iceberg. And yet, with few exceptions, those prison walls remain closely guarded against the rule of law. Until that changes, until CSC and other penal organizations across the country open their doors to true accountability, to international scrutiny, to critical research and to the rule of law, CSC's response yesterday boils down to a promise that there will be more Ashley Smiths.