Kim Pate is a Canadian senator and a member of the Order of Canada.
I cannot imagine craving human contact so badly that I would do things that risk my life, yet that was Ashley Smith's reality for months before she died in segregation on Oct. 19, 2007. As I was reminded recently when I met with women in prison, this remains the reality for far too many.
British Columbia Supreme Court Justice Peter Leask's recent ruling that indefinite segregation of prisoners is unconstitutional leaves far too much power in the hands of the Correctional Service of Canada (CSC) – power that can be exercised against one of the most powerless and voiceless groups in our country, behind closed doors and with relative impunity.
No doubt his decision hits many high notes. He recognized the devastating effects of segregation as including "significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide," specifically "anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour."
Justice Leask focused on the conditions and effects of segregation rather than what it is called or the reasons for its imposition. He adopted an Ontario ruling that administrative segregation is solitary confinement by another name, a practice recognized internationally as a violation of human rights that can amount to torture.
He recognized that Indigenous peoples, especially Indigenous women, and those with mental-health issues, are significantly overrepresented in segregation, such that indefinite segregation also violates their equality rights pursuant to section 15 of the Charter of Rights and Freedoms. He gave the government one year to fix these issues, suggesting a 15-day cap on segregation and requiring external oversight by third parties. This essentially sends the matter back to the CSC to fix the issues that it has consistently refused to acknowledge, let alone address.
But what the factual record before the judge shows is that no amount of segregation is "safe." Justice Leask accepted that even two days endured in isolation can have profoundly negative effects – sometimes permanent – on a person's mental health and ability to engage in social interaction. Why not declare segregation per se an unconstitutional practice amounting to "cruel and unusual punishment" contrary to our constitution?
Caps are easily sidestepped by CSC. Coralee Cusack Smith, the mother of Ashley Smith, whose 2007 death in segregation in Grand Valley prison for women was ruled a homicide, states "we know of prisoners who are still being moved from prison to prison and being segregated in each prison and the clock is restarted at each prison. A 15-day maximum for each of the 17 moves Ashley experienced would have meant 255 days in segregation for Ashley."
Third-party oversight is also vulnerable to "industry capture." It is all too easy for those contracted by government to come to see the issues through the eyes of CSC, to become part of the machinery rather than remaining open to the humanity and vulnerability of those who are imprisoned. This is precisely why, following the Commission of Inquiry into Certain Events at the Prison for Women in Kingston nearly 22 years ago, Louise Arbour concluded that judicial oversight of corrections was required.
Further, Justice Leask missed the opportunity to declare segregation a practice of sex discrimination. Such a focus would have allowed him to see that the conditions of isolation and deprivation under which women in Canada classified as "maximum security" serve their sentences – segregated in small, isolated units – is unconstitutional.
Finally, he named segregation as discriminatory to Indigenous prisoners, as well as those who are considered mentally ill. In fact, segregation can itself cause mental-health deterioration, and CSC resists recognizing mental illness among its prisoners, tending to characterize resulting behaviour as requiring disciplinary rather than therapeutic interventions. Ashley Smith was only acknowledged by CSC as having mental-health issues after her death. We are left with an incomplete picture of segregation in Canada – particularly for women – and wholly inadequate remedies.
Segregation is an inherently dangerous and inhumane practice. There is no evidence that it is possible to moderate or contain the damage it causes. Segregation is not necessary; there are examples in Canada where, when segregation was not an option, entire institutions have operated for extended periods without segregation units. When segregation is available, it is too often used as a default. If we truly wish to fix the problem, we must condemn and end the use of segregation outright.