Sheila Wildeman is an associate professor at Schulich School of Law, Dalhousie University
Recently the B.C. Supreme Court declared "administrative segregation" in prisons unconstitutional. It ruled that this form of solitary confinement causes severe psychosocial harm and is contrary to the Charter of Rights and Freedoms. It barred, as discriminatory, application of the regime to Indigenous prisoners and ruled that "any period of administration segregation" of prisoners with mental-health problems is illegal. Any remaining use of segregation must be hedged by strict time limits, access to counsel and independent review.
This is the farthest-reaching incursion on solitary confinement in Canadian history. Yet, as Senator Kim Pate argued in The Globe and Mail, it does not go far enough. She suggested that restrictions such as those in the British Columbia judgment are unlikely to disturb the black hole of correctional discretion around prisoner isolation. Authorities have proved adept at bending restrictions – for instance, manipulating when the clock starts/restarts on hard time limits.
Another means by which authorities may evade limits on segregation is by redirecting prisoners to sites classed as clinical rather than simply correctional.
Some assume that mental-health-based confinement, whether in federal prisons or specialized provincial facilities, does not require equivalent legal protections.
This is a dangerous assumption. Mental-health care in prisons has long been recognized as warped by the correctional ethos which prizes security over all other imperatives. One prisoner giving evidence in the B.C. case stated that mental-health observation cells in prison are "the only thing worse than segregation."
Parallel rights abuses are endemic to provincial mental-health detention regimes. A report from B.C.'s Community Legal Assistance Society observes that that province's Mental Health Act "has no definition of restraints or seclusion and no criteria governing what form of restraints and seclusion can be used, under what circumstances, and for what period of time." Instead, the Act confers discretion on facility authorities to direct and "discipline" patients.
Common practices include forcible removal of clothing, placement in four-point restraints, confinement in locked rooms, and forced injection of psychoactive substances for the purpose of institutional control.
While B.C.'s Act is the harshest in Canada, all provincial mental-health detention regimes are beset by similar defects. While other provinces mandate periodic review of hospital-based detention, review boards lack authority to oversee conditions of detention, including seclusion/segregation. In 2015, the Ontario Court of Appeal ruled that failure to build in such oversight was unconstitutional in cases of long-term psychiatric detention. Yet, it is also unacceptable that persons detained for less than six months cannot challenge seclusion or debilitation by chemical or physical restraints. One cannot assume that such practices occur rarely. A 2011 Canadian Institute for Health Information study indicated that nearly one in four persons admitted to a mental-health bed in Ontario experienced at least one form of institutional control (physical, chemical or seclusion).
So where do we look for hope in the fight against solitary confinement and other traumatizing practices of seclusion and restraint, in correctional institutions and also those dedicated to mental health? The Newfoundland and Labrador Court of Appeal has determined that psychiatric detainees may bypass review boards and challenge their detention in court, using habeas corpus. Yet this is no panacea, as the prison context has shown.
The primary line of attack must be to promote the social determinants of health, and so to combat criminalization and institutionalization of Canada's most vulnerable. Beyond this, changes must be made to institutional practices. In 2008, an Ontario coroner's inquest into the death of Jeffrey James (after five days in four-point restraints at the Centre for Addiction and Mental Health) produced a set of recommendations centring on eradicating the use of restraints. The jury called on psychiatric hospitals, professional organizations and government to consult with those with experience of psychiatric detention in devising alternatives.
A key response was the Registered Nurses' Association of Ontario's 2012 Promoting Safety: Alternative Approaches to the Use of Restraints, which emphasizes altering practices that trigger crisis and confrontation, and promoting crisis de-escalation.
Change is coming, but slowly. In 2017, the Ontario Human Rights Commission entered a settlement with Waypoint Centre for Mental Health Care concerning the death of Kulmiye Aganeh. Mr. Aganeh died of heart failure owing to toxicity from an antipsychotic after an incident involving restraints. Waypoint must now consult with experts on avoiding discriminatory subjection of racialized persons and those with mental-health disabilities to seclusion and physical and chemical restraints.
Such initiatives must extend beyond mental-health facilities to other sites of mass custody, including long-term-care homes, nursing homes and continuing-care facilities. So long as residents may be placed in locked wards or subject to seclusion and restraints, these institutions, too, call out for human-rights oversight.
Whether or not the recent B.C. ruling on prisoner segregation is appealed or implemented, the struggle for freedom from arbitrary and undue deprivation of liberty in closed institutions will, and must, continue – on multiple fronts.