Lisa Kerr is an assistant professor, Queen's University, Faculty of Law.
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There has been a startling development in the solitary confinement of prisoners in our federal system. For many years, penitentiaries consistently held about 800 prisoners in segregation on any given day. However, over the past year, the Correctional Service of Canada has cut the number of segregated prisoners in half. According to data collected by the CSC, and obtained pursuant to an access-to-information request, the number of prisoners held in cells for up to 23 hours a day is now 405.
Questions that emerge are why the change took so long to come about and whether we can expect it to last. This change, while positive, reveals a dark truth. The CSC has long asserted that it relies on segregation only when absolutely necessary, such that any reform would threaten prison security. But if the correctional service can take half of its segregated population out of isolation, it seems clear that it could have made this decision earlier. It seems that the change required only greater incentives within the prison service. The only plausible explanation for this development is that the CSC is responding to intense public pressure, litigation and criticism, including by The Globe and Mail.
There has been no change in the law that could explain the reduction. The "administrative segregation" provisions in the Corrections and Conditional Release Act have not been significantly amended since their enactment in 1992. Although the law provides that administrative segregation can be used only as a measure of last resort, it has always lacked concrete rules of enforcement. For example, the law does not include a strict limit on the number of days that a prisoner can be isolated. The result is that prison officials have long enjoyed an enormous amount of discretion.
Nor has there been a change in the demographics of our prisons, at least not in a way that could explain the substantial reduction of segregated inmates. The federal prison population has seen a modest 10-per-cent increase since 2006. While the rate of incarceration for Caucasians has dropped, substantial growth has been seen for indigenous, black and female prisoners. There is no evidence to suggest that a growing population of marginalized prisoners would generate a reduction in the use of segregation.
What has changed is the level of scrutiny and criticism that prisoner isolation now garners in Canada. Abusive practices of segregation have resulted in needless suffering and deaths for many years. Judges, journalists, lawyers and the Office of the Correctional Investigator have each done significant work to publicize the situation.
Prime Minister Justin Trudeau had directed the Justice Minister to implement extensive reforms arising from the coroner's inquest into the death of Ashley Smith. CSC leadership has long agreed that segregation is undesirable because it harms prisoners who cannot get access to rehabilitative programming and meaningful social supports while in isolation.
But the CSC has also insisted, on many occasions, that unrestrained access to administrative segregation is essential to the task of safe prison management. To date, the CSC still refuses to impose any time limits on the practice, and it has failed to implement external oversight.
Perhaps most notably, the CSC refuses to commit to a prohibition on placing mentally ill individuals in segregation. In recent limited amendments to its internal policies governing administrative segregation, it now provides that mentally ill prisoners can be represented by an "advocate" when they are placed in segregation. Rather than moving to end a practice widely viewed as torture, the CSC has explicitly recommitted to using non-therapeutic segregation as a way to house the mentally ill.
As long as Canadian law lacks more specific limits, the segregation of prisoners in our system will change according to the internal, transient preferences of the prison bureaucracy. In rare times, such as this past year, that could generate good news for those concerned with humanity and the rule of law in our prison system.
But different political winds could easily spell the opposite. Now is the time to pass legislation to ensure that minimal reliance on segregation is the rule, not the temporary exception.