Lisa Kerr is an assistant professor, faculty of law, Queen's University.
The public discussion about solitary confinement in Canada's prisons has reached a consensus, and the question now isn't whether change is required, but how it will happen. What measures, and from which branch or level of government, will work to effectively end the practice of confining prisoners in cells for all but one or two hours of the day?
Prime Minister Justin Trudeau has called for the implementation of recommendations from the inquest into the death of Ashley Smith, but it is unclear how that process will unfold and what will satisfy his Liberal government.
We once wondered how solitary even works, and what impacts it has upon those subjected to it. We once asked whether this practice was acceptable, particularly given the difficulties that we imagined came with running prisons. That period of education is now over. The rise and proliferation of psychological expertise has settled the question of the potentially devastating effects of solitary on mental health.
Extensive work done by international bodies such as the United Nations Committee Against Torture resulted in clear recommendations that prisoner isolation should be used in only rare cases and for brief periods. Canadian prison legislation fails to embody those recommendations and must be amended.
Administrative segregation provisions in the Corrections and Conditional Release Act, which permit the indefinite isolation of prisoners, have not been significantly amended since their enactment in 1992. Although the law states generally that administrative segregation can be used only as a measure of last resort, it has always lacked concrete rules of enforcement. Discretion is left in the hands of correctional officers, who lack incentives to find quick alternatives. Naturally enough, the officers consider themselves bound by the concrete legislative rules that govern prisons. Nothing will change until the law itself contains concrete limits.
A number of tragedies have shown how our prison legislation allows solitary to be abused, with devastating results. Harms accrue not only to prisoners but also to the correctional officers who must administer these grim parts of our prisons. But there are clear alternatives to solitary and better ways to manage the risk and disorder that can be part of prison life.
Over the course of the past two centuries, capital punishment and various forms of corporal punishment slowly became unacceptable and were abolished in countries like ours. So too has the practice of solitary confinement become a penal method that is beyond the pale of a legitimate prison system. So how can it be ended?
The Correctional Service of Canada attempted to answer this question, and to pre-empt further reforms, by voluntarily revising its policies on administrative segregation in October, 2015. Shockingly, the new policy recognizes that mentally ill prisoners are often placed in segregation, but only improves the procedural protections afforded them. These measures, which plainly confirm that CSC plans to continue to isolate mentally ill prisoners, only underscore the need for externally developed reforms. The new policy also lacks the central demand of the domestic and global movement against solitary – clear time limits in the range of 15 or 30 days.
It is clear that the reform of solitary confinement requires legislative action. Policy tweaks emanating from the federal prison service are invariably flawed. Correctional policy is developed by prison officials away from the public eye and with the needs and preferences of prison officials squarely in mind. Elected officials, in contrast, must do their work in the public-lawmaking sphere and in light of the full range of human rights and constitutional law.
The legal and political philosopher Jeremy Waldron refers to the "dignity of legislation" to capture, in part, the desirability that certain conflicts be debated and addressed by our representative bodies. The topic of solitary confinement merits the dignity of legislation.
Our criminal-justice system endorses the deprivation of liberty as punishment for wrongdoing, but we do not endorse dehumanizing treatment. Amendments to the Corrections and Conditional Release Act should follow a process that includes the publicity, debate and accountability that are the prized features of democracy. We would not stand for Parliament to delegate or abdicate its lawmaking role in other areas of equal significance, and we should not do so here.