Lisa Kerr is an assistant professor at Queen's University Faculty of Law.
When analyzing a new law, it is important to ask what the law symbolizes along with what the law does. Symbols can be as important as the actual rules when it comes to the prospect of real change.
The Liberal government has tabled Bill C-56, which reforms the provisions in the Corrections and Conditional Release Act that govern administrative segregation or solitary confinement. First enacted in 1992, advocates have been trying to fix this rather lawless regime ever since. It is no small thing that these provisions are now receiving such thorough legislative attention. This did not happen in the wake of Ashley Smith's death nearly a decade ago. Correctional Service Canada (CSC) and the Conservative government of the day refused to make changes even as the unsettling details of the teenager's needless death in segregation came to light in a public inquest.
This draft bill was accompanied by important comments from the Minister of Public Safety, Ralph Goodale. He made clear that Ashley Smith's death is the key driver of this reform. He made clear that the segregation of inmates should be kept to an absolute minimum, and that using isolation on mentally ill people only makes matters worse. These statements symbolize a new culture on this topic and should be commended.
There is no question that these reforms will help to sustain a trend of declining reliance on solitary. The average length of stay in segregation in federal prisons has decreased in recent years – from 44 days in 2007-08 to 26 days in 2015-16. The average daily counts of segregated inmates are also significantly lower. For many years that number was about 800; it is now less than 400. In a sense, this legislation follows a change in practice that has already occurred.
The symbolic features of this reform may be stronger than the details of the law. Most important: This is not a cap on the number of days that people can be held in isolation. Rather, the proposed law says that an inmate "shall be released" from segregation after 21 days "unless the institutional head orders that the inmate is to remain in segregation." The "institutional head" makes these decisions under the current law as well. Eventually, the presumptive release will come at 15 days. But the power to continue the segregation is plain as day.
What is new is a process for "independent external review" that is activated when segregation continues beyond time limits. This resembles a reform that advocates have been pressing for, but again the details disappoint. Unlike the current process for disciplinary segregation, this review does not entail a hearing in which an inmate might advance her own case and plead for release, or be represented by counsel. It is a paper review only, though the reviewer may opt to communicate with an inmate. The outcome of the review is non-binding – CSC can disregard the recommendation.
Crucially, this legislation does not prohibit the placement of mentally ill people or other vulnerable groups in isolation. The prison service proposes to put those protections in policy. These reforms are at the heart of the movement against solitary confinement. They merit the explicit commitment of Parliament and should be placed directly in legislation.
The bill is also silent on how many hours an inmate should be released from a segregated cell each day. Access to fresh air, exercise equipment, showers and phone calls are critical to an isolated inmate. The prison service proposes a maximum of 22 hours a day to be included in policy. That is an improvement from the previous rule of 23 hours. But our prison service can do better, especially since declining numbers of segregated inmates must free up resources. For those inmates who will continue to be separated from the general population indefinitely under this new bill, we must press for a meaningful number of hours outside of their cell to be specified in the law.
On some things, the law matters more than the symbols.