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Canada Anti-apartheid hero urges Canada to rethink solitary confinement in prisons

Albie Sachs says solitary confinement scarred him so badly that a car bomb gave him back some of his joy and buoyancy.

Glenn Lowson/The Globe and Mail

Decades ago, as a young white lawyer with the wrong sympathies, he spent 168 days in solitary confinement in South Africa. More recently, he helped draft the country's post-apartheid constitution, and was a judge on its first multiracial Constitutional Court – a court that looked to Canada for inspiration.

And now Albie Sachs has a plea for Canada: Think again about the solitary confinement of prisoners.

"Look very, very seriously, look into your hearts," he said. "To my mind, solitary confinement, particularly if prolonged, represents a level of cruelty and inhumanity and disrespect to human dignity that is incompatible with modern standards, the values of an open and democratic society. I feel that should be a universal principle.

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"And my expectations and hopes would be that Canada would set an example, as it has done in many areas."

Mr. Sachs, born in 1935, is an embodiment of modern South African history. His right arm was blown off and he was blinded in one eye when his country's security police planted a bomb in his car aiming to kill him, as he advised the banned African National Congress in 1988. He has worked alongside Nelson Mandela. As a retired judge he has written books on the law, and as a former prisoner he has published a jail diary that became a stage play in London.

Prolonged segregation in federal prisons in Canada may be on the way out. Prime Minister Justin Trudeau has given his Justice Minister a mandate letter instructing her to implement the recommendations of an inquest into the 2007 suicide of 19-year-old Ashley Smith, who had spent nearly a year in solitary. One of those recommendations was for an end to segregation lasting longer than 15 days. But provincial jails still use solitary.

It was Mr. Sachs's experience in solitary confinement, not the bomb, that marked him for life, he said in an interview with The Globe and Mail before giving the eighth annual Charles Dubin Lecture hosted by the Advocates Society, a Canadian lawyers group, on Thursday.

The experience began like something from the movies: a man tying his shoes, another man reading a newspaper, all of a sudden springing into action as state agents, taking him away. It was 1963, and he was a lawyer in his late 20s. He was never charged.

His 168 days in solitary are six more than Eddie Snowshoe, the 24-year-old from the Northwest Territories profiled in The Globe last year, whose suicide while he was in prison for armed robbery has helped draw attention to the widespread use of prolonged segregation in federal prisons.

The cell was two or 2 1/2 metres long and a metre wide, Mr. Sachs says. He had a bed. He was given 20 minutes a day for outdoor exercise. There was no window to see out of. "You realize human beings are built in their DNA to associate with other human beings – to talk, to get angry with, to laugh, to ignore even. On a good day you would just feel depressed. The range of emotions were from deep deep deep depression and despair and feeling the unnaturalness of it all to just feeling bad.

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"I invented various stratagems. I sang, I whistled. I exercised. The one thing I was allowed was to read the Bible. I would ration myself to 2 1/2 pages a day. That was absolutely the highlight. It was just seeing words in print, feeling connected with the world out there."

South African law allowed for detention for 90 days without charge. At the 90-day mark Mr. Sachs was given back his suit, watch and shoes and was set free. Before he reached the street, one of his interrogators rearrested him. He was held another 78 days.

"I'm sorry to say our Supreme Court said that's a valid interpretation of the law," Mr. Sachs said.

In a similar way, Canada's women's prisons evaded the rules in the case of Ashley Smith. Regional authorities were supposed to review each case in solitary that lasted six weeks; yet each time she attended court or was transferred to another jail, or a psychiatric facility, federal authorities reset the clock. She committed suicide in a cell not much larger than Mr. Sachs's: six feet by nine feet.

"Something inside me was crushed," Mr. Sachs said. He recalled that while living in exile in Mozambique he met a politician from Italy who had been in solitary confinement under Mussolini. "Albie, you never get out of solitary confinement," he quoted the politician as telling him.

Strangely enough, surviving the car bomb that nearly killed him gave him back some of his joy and buoyancy. "The bomb that came years later blew away that sense of misery," he said. "There's still that deposit, that layer of sorrow, but it's less overwhelming than it was."

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Mr. Sachs, who is embarking on a five-year project to tell the story of how South Africa developed its constitution, said in the interview that the Constitutional Court found its beacon in Canada.

"We started with a clean slate. We couldn't use South African precedent from the apartheid era. We were encouraged by the South African constitution to look at the approach to law all over the world. We found the most valuable source was the Supreme Court of Canada." The South African court ended the death penalty, banned corporal punishment as a state penalty for juveniles and opened the door to gay marriage.

The main reason for emulating Canada's approach to constitutional rights, he said, was the leadership of chief justice Brian Dickson and Bertha Wilson, the court's first female justice, who set the tone in the early years of the 1982 Charter of Rights with a liberal vision of the document's purposes.

"The approach was modern, contemporary, thoughtful, humane and imbued with the values of an open, democratic society," he said. "It wasn't playing around with tricky legal concepts, going off and doing legal gymnastics. It had that broad, empathetic vision of a diverse society and of humanity coming in all sorts of shapes and sizes. We found that fit very well with South Africa's situation."

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