Three years after Ottawa implemented legislation intended to abolish solitary confinement, vestiges of the practice – defined as torture by the United Nations – persist in federal prisons, according to an oversight panel.
Chaired by former federal correctional investigator Howard Sapers, the nine-member panel studied how well the penitentiary system is conforming with new laws that grant prisoners who have been placed in isolation units more human contact and more time outside their cells.
It found that Indigenous peoples are vastly overrepresented in new isolation cells, known as Structured Intervention Units (SIUs), which were created after the new laws were passed. And it also found that isolated prisoners routinely get less than four hours of time outside their cells – the minimum mandated in legislation.
In an interview, Mr. Sapers called the entire SIU program “a work in progress” that has yet to live up to its promise.
The panel’s annual report was released last week. Upon reading it, Catherine Latimer, executive director of the John Howard Society of Canada, which led one of two successful court challenges against solitary confinement, had a more blunt assessment.
“It’s a mess,” she said of the new SIU regime. “Nothing is more frustrating to me than this. I would have thought that there should be some basic respect for the rule of law, and the principles enunciated by those court decisions.”
Those court rulings declared that placements in administrative segregation, an isolation technique similar to solitary confinement, lacked adequate oversight and constituted “cruel and unusual punishment” when they exceeded 15 days. Administrative segregation, they said, amounted to indefinite and prolonged solitary confinement, a practice the UN’s Standard Minimum Rules for the Treatment of Prisoners regard as torture.
The UN’s definition of prolonged solitary confinement is any term of isolated imprisonment lasting more than 15 days and consisting of 22 or more hours a day in a cell without meaningful human contact.
The federal government responded with legislation creating SIUs, where prisoners are supposed to get at least fours hours a day outside their cells, with two of those hours consisting of “meaningful human contact.”
The Correctional Service of Canada (CSC) has since constructed 16 of the units across the country, with a collective capacity of 422 people, according to the panel’s report.
Prisoners are placed in isolation cells when they can’t be managed safely in the general prison population. The ones who end up in SIUs tend to belong to the same groups that were overrepresented under the previous administrative segregation regime.
The Sapers panel found that about 75 per cent of women housed in SIUs on Feb. 13, 2022 were Indigenous, even though Indigenous women made up only 49 per cent of the female prison population, and 4.2 per cent of all women in the country.
The panel also found that slightly more than half of all SIU placements lasted 16 or more days – a cohort it called “long-stay prisoners.”
Since SIUs launched, nearly 60 per cent of these long-stay prisoners have missed their four-hour allotments on at least three out of every four days spent in the isolation units.
“It shows that solitary confinement is still very much in place in Canada,” said Dalhousie University law professor Adelina Iftene, who researches prison law. “The report makes it clear that over half of placements in Structured Intervention Units meet the definition of solitary confinement.”
The panel did note some recent improvements in the way SIUs are being administered. The number of long-stay prisoners who missed at least three-quarters of their four-hour allotments declined by half during the most recent period of measurement, October to November, 2021.
In a detailed written response to the panel’s report, CSC said there are roughly 150 inmates in SIUs on any given day, about 1.2 per cent of the federal prisoner population. People in SIUs often have complex needs and require prolonged periods away from other prison populations, according to the correctional service.
“For example, inmates who present with complex needs, such as tendencies towards violence or aggression, often require ongoing support and assistance to help safely reintegrate them to a suitable mainstream population,” CSC said in its response.
The SIU legislation also created a new group of federal officials, known as Independent External Decision-Makers (IEDMs). They review certain SIU decisions.
But the Sapers panel found that training for IEDMs is weak, and their oversight powers are limited. If an IEDM calls for the release of a prisoner from an SIU, for example, CSC doesn’t always tell them whether the direction was followed.
IEDMs can review a prisoner’s SIU placement after 60 days and decide whether the prisoner should remain or be released to another part of their prison. The panel discovered that nine of the 14 people who have served as IEDMs rarely called for the release of prisoners from SIUs. Those IEDMs only did so in about 5 per cent of cases.
“CSC has put a tremendous amount of effort and resources into creating these units,” Mr. Sapers said. “That effort itself is not enough. My experience with CSC suggests better oversight is required.”