Lisa Kerr is an assistant professor at Queen’s University, Faculty of Law
The debate about solitary confinement has come a long way in this country. Just a few years ago, the Correctional Service of Canada denied that we even have solitary in Canadian prisons. In the wake of the inquest into the 2007 death of Ashley Smith, the service said that the reforms recommended in 2013 would be impossible to even consider. But in subsequent years, facing high-profile litigation and intense public scrutiny, the service began to cut its official segregation counts. The current number of segregated inmates is 341, down from longstanding daily averages of 800. This week, Public Safety Minister Ralph Goodale promoted a new bill by promising it would put an end to solitary confinement in federal prisons.
But will it? To analyze the various components of this proposed law, it’s important to remember the range of stakeholders involved. For at least two years, the Liberal government has been trying to develop legislation that would somehow satisfy and support all the key players: the courts, the public, human rights lawyers, people subjected to solitary, the prison officers’ union and the prison service itself. Bill C-83 is the outcome of that process. Not surprisingly, the bill offers a little something for everyone, and it will also attract some important criticism.
Prison staff will be pleased with the vast discretion they retain under this bill, and the fact that the law does not include the time limits that reformers have long wanted. Inmates who are separated from the general population will now be placed in “structured living units” rather than administrative segregation. Like administrative segregation, these placements will be indefinite. In addition, the reasons that govern the placement decision are just as general as before: the question is whether officials think that an inmate poses an issue for the “safety and security of the institution.”
The prison service may also be content that this bill does not empower any independent person – such as a judge – to oversee this new form of separation. In a recent B.C. Supreme Court opinion, Justice Peter Leask spent 54 paragraphs, or 14 pages, discussing the history of calls for independent oversight of solitary, and explaining why the prison culture needs a truly independent check. Without such a check, Canadians cannot be assured that officials are following the law and not misusing their discretion. Indeed, one wonders why this reform is so fiercely resisted. An accountable organization should not fear oversight. Forty-one per cent of segregated inmates today are Indigenous, and many are struggling with serious mental health issues. This is a practice that affects vulnerable populations; the prison service should welcome review and validation of its decisions.
On the other side of the ledger, advocates who have been calling for “separation without isolation” can point to important new rules in how inmates in these units are to be treated. Properly implemented, the new rules may well mean that Canada does end the practice of solitary confinement. Separated inmates are to get four hours, minimum, outside their cells each day. For two of those hours, inmates are to be given an “opportunity to interact” with others through “programs, interventions and services that encourage the inmate to make progress.” Tellingly, one provision spells out that time spent taking a shower cannot be considered part of the four hours. This is a law that is clearly attempting to end some very bad institutional habits in the treatment of segregated inmates. Meanwhile, the government is in the rather smart position of being able to say: we don’t need time limits and independent review of segregation, because this isn’t segregation.
For inmates, the worst effects of the social, occupational and sensory deprivation of solitary stand to be alleviated under the new regime. What’s more, the new bill says that if an inmate declines to accept out-of-cell time, or if a health-care professional recommends that the placement come to an end, the warden is required to review the situation. The idea here is clearly to trigger a response when the health of an inmate may be deteriorating under such restrictive conditions. I hope that prison staff will hear the message this legislation is sending, even if the message could have been louder and clearer.
Another new rule could have limited effects. The bill also removes the possibility of imposing segregation as punishment for prison misconduct. This was a fairly infrequent practice, because the prison service largely opted to avoid this procedurally burdensome regime by just opting for the comparatively lax administrative regime. Inmates facing disciplinary charges have access to counsel and a right to a hearing in front of an independent decision-maker, where guilt has to be proven beyond a reasonable doubt. And disciplinary segregation was capped at 30 days.
The Union of Canadian Correctional Officers is already responding to this draft bill by lamenting the end of disciplinary segregation, though in recent years only about 2 per cent of inmates in solitary were there following a disciplinary offence. With the new structured intervention units, inmates may be held well beyond the 30-day disciplinary cap. Indeed, the greatest worry under this new bill is that the downward pressure on segregation will come to an end, and these units will become the new first-line response for the challenges that prisons invariably face.