Supreme Court to hear cases challenging government's solitary confinement policy

The Supreme Court of Canada has decided to hear two cases launched by civil rights groups challenging federal policy on the use of solitary confinement in prisons.

The court announced today it will jointly consider two challenges — one brought forward by the Canadian Civil Liberties Association and another fronted by the British Columbia Civil Liberties Association.

Faced with legal challenges of federal segregation policies, the Liberal government proposed legislative changes in 2018 to "eliminate" the use of solitary confinement and establish new Structured Intervention Units (SIUs) to hold inmates who can't be managed in the mainstream population for security or other reasons.

The changes came into effect in November 2019. The Correctional Service Canada (CSC) called it the beginning of a "transformative era in Canadian federal corrections."

But Alison Latimer, a lawyer representing the B.C. Civil Liberties Association, said the new protocols are "window dressing" and won't ensure inmates aren't held in segregation for long periods of time.

"The problem with the new law is that it continues to allow prolonged, indefinite solitary confinement, now called Structured Intervention Units, whereas before it was called 'segregation'. That's just a euphemism, I would say," she said.

The new policy has no hard limit on how long inmates can be held in SIUs, although its stated goal is inmate reintegration "as soon as possible."

Offenders in SIUs are allowed to spend at least four hours a day outside their cells, including two hours a day of "meaningful interaction" with others. The new model is meant to better support inmates' mental health needs and the specific needs of Indigenous peoples.

15-day cap

Latimer said the B.C. challenge will push for a 15-day limit on solitary confinement, in line with international standards. It also will seek specific remedies for Indigenous and mentally ill offenders, who are over-represented in segregation and the prison system at large. She said those two groups are also held in solitary more frequently and for longer periods of time.

Studies have shown that solitary confinement can cause "immeasurable harm" in terms of psychological and physical damage, she said.

A statement from the office of Public Safety Minister Bill Blair said the government has delivered on its promise to eliminate administrative and disciplinary segregation and promote rehabilitation to ensure the safety of inmates and staff.

"The new, fundamentally different system focuses on rehabilitation and mental health care, has minimum requirements for time out of cell and meaningful interaction with other people, and is subject to independent external oversight. The new system is supported with an investment of $448 million for new staff, infrastructure and mental healthcare," the statement reads.

The government also struck an advisory panel, chaired by University of Toronto criminologist Anthony Doob, to monitor the implementation of the new system.

Independent review

The government also set up an external, independent oversight body to review the length and conditions of individual inmates' stays in SIUs. The CSC says the 12 members of the panel have expertise in criminology, human rights and Indigenous issues, and their decisions will be binding.

"The independent, external decision makers are external to CSC and can determine that an inmate should not remain in an SIU, or whether their conditions of confinement should be altered in accordance with the recommendation of a registered health care professional," said CSC spokeswoman Esther Mailhot in an email.

There are now SIUs at 10 CSC institutions for men, and at all five women's institutions.

Correctional Investigator of Canada Ivan Zinger said there are now 204 inmates in SIUs — a number he describes as historically low compared to the former segregation regime.

He said he has visited SIU units at Kent Institution in B.C. and Millhaven Institution in Ontario. While SIU inmates are now out of their cells more than they were under the old segregation regime, he said, they are still in "very harsh conditions of confinement" with no cap on the length of time they spend there.

Zinger said it's up to the independent oversight body to determine if the individual circumstances of SIU detentions are appropriate.

"The Supreme Court of Canada will have to evaluate if that is sufficient due process," Zinger said, adding he doesn't believe the independent review system amounts to due process "considering the residual loss of liberty and harsh conditions of confinement."

Zinger said that, based on his discussions with two prison wardens, CSC appears to be working hard to keep the numbers in SIU units low and the inmates' stays short-duration. But he added it's not clear to him if that effort can be sustained over time.

"There is no doubt that the CSC is working very hard to iron out the growing pains associated with implementing a new regime," he said.

Zinger said CSC has more than 420 cells designated as SIUs, and the law states that the CSC commissioner can designate an entire penitentiary as an SIU.

Catherine Latimer, executive director of the John Howard Society of Canada, recently visited the SIU at Millhaven Institution, where more than 20 men were being detained in the unit after being transferred there from other penitentiaries.

"That means you have different levels of security. You're putting maximum security prisoners in with medium or minimum security prisoners. So you really run the risk of there being some frictions as a result of bringing those ones that are hard to manage in all the institutions and bringing them together in a single spot," she said.

"It can be challenging."

CSC is hiring

CSC spokeswoman Stephanie McGlashan said the prison service plans to hire about 950 additional staff members by 2024-2025 to support SIUs and deliver health services. They'll include SIU staff, correctional officers, parole officers and health care professionals.

"The additional staff will allow CSC to ensure inmates are receiving their required interventions, programming, health services, time out of cell and interactions with others," McGlashan said in a statement.

Calls for tighter restrictions on solitary confinement increased following the high-profile inquest into the death of 19-year-old inmate Ashley Smith. She died in a segregated prison cell at the Grand Valley Institution for Women in Kitchener, Ont. in 2007.

She had spent more than 1,000 days in segregation, transferred from institution to institution.

A coroner's jury into her death ruled that her self-inflicted choking death was a homicide and made 104 recommendations to prevent similar deaths in the future.

One year ago, the B.C. Court of Appeal gave the federal government more time to implement policy changes on segregation, but ordered new conditions to limit the violation of inmates' constitutional rights.