Lisa Kerr an assistant professor at Queen's University Faculty of Law
When Howard Sapers released his recommendations for reform in the Ontario jail system this past week, several reports noted that the provincial government responded within minutes. The Minister of Community Safety and Correctional Services, Marie-France Lalonde, said that Ontario accepted and would address all recommendations in the report. Reform measures will include replacing two troubled jails and introducing new corrections legislation in the fall.
Mr. Sapers, Ontario's independent adviser on correctional reform, recommended the same time limits on segregation or solitary confinement that the Ashley Smith coroner's inquest recommended for the federal prison system in 2013. After hearing the distressing evidence of what led to Ashley Smith's death in a segregation cell, the coroner's jury recommended that "indefinite solitary confinement" be abolished and that long-term segregation not exceed 15 days. They also recommended that inmates not spend more than a cumulative total of 60 days segregated in a calendar year.
It took the Correctional Service of Canada (CSC) one year to respond to the Smith recommendations. When it finally did, the CSC issued a statement that it would not be implementing the recommended time limits. In its response, the CSC denied that the term solitary confinement is "accurate or applicable" within the Canadian prison system. After denying the practice exists, it then refused to impose concrete limits on it.
The question is why the Ontario government appears willing to do what the federal prison service has refused for decades. Part of the reason may be that many held in provincial jails are legally innocent. Like Adam Capay, they are awaiting trial and should not be held in such punitive conditions. Another factor may be that, to date, the legislation governing Ontario corrections has been, as Mr. Sapers puts it, "skeletal." Segregation is mentioned, but the practice is not even clearly defined. Minimum standards for segregation conditions – like when inmates get a book, or a doctor – are not clearly or consistently set out. This was legislation due for revision.
On the other hand, many think that segregation may be more administratively necessary, and thus more legitimate, in the jail setting. Provincial jails hold a complex and revolving mix of inmates serving shorter sentences and awaiting trial on a range of charges. These are, without doubt, difficult places to manage. Mr. Sapers describes how segregation becomes the "default tool" for handling a range of institutional problems. That means reforming segregation in a real way – which must include time limits – will be hard.
The federal penitentiary system holds inmates serving sentences of two years and longer. Inmates tend to be more settled and invested in their correctional experience, and the federal system is widely considered to be more professional, organized and resourced than provincial systems. The federal legislation is in far better shape. Why would provincial jails be able to dispense with indefinite inmate isolation, when the federal prison service says it can't?
In truth, the CSC can reduce its reliance on segregation. Indeed, it already has. Under the spotlight of the Smith proceedings, media attention and pending litigation, CSC has achieved significant reductions in the numbers of inmates held in administrative segregation in recent years. CSC had long maintained that it follows the principles set out in its governing legislation – that it only uses segregation when there is no alternative, and that all segregated inmates are released as soon as possible. The swift reductions, while admirable, cast doubt on the years of CSC insistence that it was not abusing segregation.
One explanation for the voluntary reductions is the CSC is doing everything it can to avoid externally imposed reforms. New rules are bound to be more concrete. Prisons are challenging places, and correctional officers prefer to govern with flexible discretion and no external interference. But the issue is that inmate isolation is a practice that engages fundamental human rights and dignity. As Mr. Sapers puts it: "the decision to place a person in segregation results in the most complete deprivation of liberty authorized by law." In a country like Canada, this is properly the stuff of careful rules and external oversight.
Mr. Sapers points out that Ontario has seen a slight uptick in segregated inmates since 2012, from 5 per cent to 7 per cent, and an increase in segregated inmates with mental-health issues, from 32 per cent to 45 per cent. Last year alone, over 1,300 men and women spent 60 or more aggregate days inside an Ontario Correctional Services segregation cell. It seems that the Ontario practice is worsening, but the provincial government is receptive to change. In contrast, the federal practice is improving, but prison officials remain unwilling to enshrine formal limits into law.
The Trudeau government has signalled its inclination to compel the Smith inquest recommendations to be fully implemented. The apparent willingness of the Ontario government to take these steps might wind up as a model for federal action.