Canada needs to end its “addiction” to solitary confinement in its prisons, and have judges review any use of segregation beyond short-term “timeouts” of three days or so, retired Supreme Court justice Louise Arbour says.
Anything less would allow a destructive and unlawful practice to continue, she said.
“In light of everything we know about segregation, the government may want to think about including it in its list of ‘barbaric cultural practices’ that it seems to be so concerned about,” Ms. Arbour said in an interview from Montreal. She was referring to a bill introduced by the Conservative government this year known as the Zero Tolerance for Barbaric Cultural Practices Act, aimed at punishing polygamy, underage marriage and honour killings.
Ms. Arbour’s comments come the day before Ottawa is expected to formally respond to the 104 recommendations of the coroner’s inquest into the death of Ashley Smith, the New Brunswick teenager who killed herself after spending more than 1,000 days in isolation. Among the major recommendations: restrict the use of solitary confinement.
A special report in The Globe and Mail Saturday detailed the story of Eddie Snowshoe, another inmate who suffered from mental-health issues. At the age of 24, he hanged himself after spending 162 consecutive days in solitary confinement.
Ms. Arbour called the report “a very compelling story, very tragic, very, very sad. You saw the signs of distress – the waste of a young life through a kind of addiction, a reflective recourse to a practice that is very dangerous.
“I don’t understand why we tolerate this extravagant recourse to segregation, number-wise, in this country, against all the evidence that we shouldn’t,” she said.
Public Safety Minister Steven Blaney defended the practice of “administrative segregation” in the House of Commons on Wednesday, saying it’s done for the “safety of the inmates, safety of the personnel and safety of the facility.” In an e-mailed statement, his spokesman later said Correctional Service Canada “uses all of its tools to make sure the corrections system actually corrects criminal behaviour, including the use of segregation.”
One in four federal prisoners in Canada spends some time in segregation. The average stay is 35 days for male offenders and seven days for women. One in six prisoners in solitary spends more than 120 days at a time.
There is no upper limit on the amount of time prisoners can spend in “administrative segregation,” used for their safety or the safety of staff or other prisoners. And there is currently no system of external review. (Only 2 per cent of solitary cases are for disciplinary purposes, which require an up-front, independent review, and have a 30-day limit.)
Ms. Arbour has spent much of her life working on human rights. She has been an international war-crimes prosecutor and the United Nations high commissioner for human rights. Nearly 20 years ago, she headed a Canadian inquiry into conditions in a women’s prison, and called for judicial review, or failing that another form of independent review, after 30 days. Many of the standards she developed for the use of solitary confinement have since been adopted by the UN.
“How many coroner’s inquests are we going to need?” she said in the interview. “How many wasted lives before we bring it to the standards of the other parts of the criminal justice system, such as the law enforcement part where we’ve subjected police officers to enormous levels of scrutiny?”
Ms. Arbour, a Supreme Court judge from 1999 to 2004, described segregation as “imprisonment within imprisonment. It’s a further and extremely severe deprivation of liberty from people who are already at the mercy of the state for their well being. Particularly when there’s any kind of signal of mental health issues or mental distress, there’s a huge burden on the state to pay attention.”
Before the 1982 Charter of Rights and Freedoms took effect, police work was largely without scrutiny by the courts, she said. “It just operated in a world of its own.” Today, that scrutiny is a widely accepted part of the system. But the corrections system is still closed to review, which allows it to act in ways that are unlawful, and that sentencing judges do not expect.
“There is no reason for the criminal-justice system to close judicial engagement after the sentence is imposed. Judges fix a length of time assuming the sentence will be served in accordance with law and in compliance with constitutional requirements of respect for human dignity. It’s a package – you fix the term but the other terms are implicit.”
The reason little has changed in Canada’s use of solitary confinement over the decades, she said, is that “inertia easily settles. There’s no big lobby, there’s no pressure on the government. Prisoners are a well-identified unpopular minority.”
Editor’s note: A previous version of this article said incorrectly that Ashley Smith spent more than 2,000 days in some form of segregation. In fact, based on information from prison officials and the Smith family lawyer and different definitions of solitary, the best estimate for the number of days is 1,047 or more than 1,000.