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Opinion Judges should be overseeing solitary confinement

Carmen Cheung is senior counsel at the British Columbia Civil Liberties Association. Renu Mandhane is executive director of the International Human Rights Program at the University of Toronto's faculty of law.

Twenty-one months. That's how long Michael Nehass, 31, spent in solitary confinement at the Whitehorse Correctional Centre. Twenty-one months in isolation for up to 23 hours a day, all time served before being convicted of any offence. He now suffers from paranoia and delusional behaviour, known side effects of extended periods in "the hole." The public only recently learned of Mr. Nehass's long-term solitary confinement because the Crown filed a jail managers' report at a sentencing hearing.

The Nehass case is similar to that of Brooklyn Palmantier, 21, who spent 132 days in solitary confinement at Yellowknife's North Slave Correctional Centre, and whose case only became known to the public when a judge found the treatment "cruel and unusual" in a sentencing hearing.

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Too often, the only time the public gets a glimpse of how solitary confinement is being used inside Canadian prisons is after tragic, preventable deaths (such as Ashley Smith's, or Edward Snowshoe's), or where the prisoner is able to bring a legal claim challenging their confinement, or completely by happenstance (as with Mr. Nehass and Mr. Palmantier). It might also be the only time a judge ever gets to review how solitary confinement is being used to "handle" a particular prisoner.

In the wake of the high-profile in-custody deaths of Ms. Smith in 2007 and Mr. Snowshoe in 2010, the public is understandably shocked when it learns of yet another case of extended solitary confinement.

But stories like Mr. Nehass's and Mr. Palmantier's are not uncommon behind prison walls. The problem is that there are few avenues for these stories to make it out – long-term solitary confinement decisions aren't made or reviewed by a judge, so there is no public transparency or accountability. Currently, when prisoners are placed in solitary confinement for so-called "administrative" reasons, it is prison officials alone who decide whether isolation is necessary, and prison officials alone who decide whether it should be continued – be it for days, months, or years.

Canada's system is broken and has been for a long time.

Since 2012, the United Nations Committee Against Torture has urged Canada to reform the way it uses isolation in prisons, and to ensure that solitary confinement is time-limited and subject to judicial oversight. Canada's Correctional Investigator has repeatedly called for a ban on solitary confinement for the seriously mentally ill, and prisoners who are at risk of self-harm. As early as 1996, Louise Arbour called for judicial oversight over all administrative segregation decisions, and limits on time spent in isolation.

For nearly 20 years, Canada has done nothing to address systemic torture in its correctional facilities. More than seven years after Ms. Smith's death, prison officials still consider it acceptable to "manage" high-needs prisoners by limiting human contact for months and years without end.

Requiring independent oversight for all solitary confinement placements is an important first step. Only judges can ensure that "out of sight, out of mind" is never an option for handling high-needs prisoners. Only judges can make certain that solitary confinement is only used as a last resort and for as short a period as possible.

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Given what we know about the role prolonged solitary confinement played in the deaths of Ms. Smith, Mr. Snowshoe and others, we must reform it. Canada can and should do better.

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