Stopping the torture

If the Trudeau government is unwilling or unable to get the Correctional Service of Canada (CSC) to comply with the law and end solitary confinement, advocates for prisoners hope that a class action suit will force their hands.

Lawyers are perplexed and troubled by the ongoing violation of prisoners' rights even after the passage of Bill C-83, which the Liberals passed after two 2019 appeal court decisions that found solitary confinement violates the United Nations' "Mandela rules" and sections seven and 12 of the Canadian Charter of Rights and Freedoms.

Although it leads to mental suffering, suicide, assaults and self-harm, solitary confinement remains a common practice in Canadian prisons. Ivan Zinger, the Correctional Investigator of Canada, has described it as "the most onerous and depriving experience that the state can legitimately administer in Canada."

Governments have been under political pressure to end the practice, as a result of both litigation and media stories about several high-profile cases: Ashley Smith, a New Brunswick teenager who took her own life in 2007 after spending years in solitary, and Adam Capay, a Lac Seul First Nation man who spent four and a half years in solitary awaiting trial, beginning when he was 19.

C-83 was the Liberal solution, providing for minimum daily allowances of time outside solitary — four hours in total, including two with "meaningful human contact," which would end the worst harms. The Liberals promised to get rid of "administrative segregation" and replace it with "Structured Intervention Units."

To implement the changes, the bill provided for ostensibly independent oversight. But in February, the John Howard Society found that, in spite of the new law, hundreds of prisoners across Canada continue to be held for more than 22 hours a day without human contact, which amounts to torture according to the Mandela rules.

The government, which rejected a Senate amendment that would have provided for judicial oversight, says it is trying "to do better on this file." Advocates for prisoners are skeptical, and hope that a class action lawsuit will create the impetus for change.

In November, Jeffrey Hartman filed a suit on behalf of representative plaintiffs Ishmael Sinclair, a Black former prisoner, and Nicholas Dinardo, an Indigenous man who is incarcerated in the Atlantic Institution in Renous, New Brunswick.

The suit, which has yet to be certified, says CSC is not following the law or its own policies. It claims the agency continues to:

• Keep prisoners "in prolonged and indeterminate isolation."  
• Segregate prisoners for periods "longer than 15 days."
• "Disproportionately segregate Indigegenous prisoners and prisoners with mental and other disabilities."
• Fail to provide health care and programs to prisoners in segregation.
• Frustrate bureaucratic oversight mechanisms.  

Hartman hopes his case will eventually force CSC to follow the law. "I really believe, given my experience in dealing with CSC, I believe that things don't change unless there's money involved, things don't change because it's the right or wrong thing to do," said Hartman in an email.

Hartman is still conducting interviews with prisoners and former prisoners, preparing witness statements, awaiting the assignment of a case-management judge, so his case is unlikely to lead to an end to human rights abuses until after years of legal wrangling, if then.

The government has failed to adequately respond to repeated recommendations from inquiries to eliminate inhuman solitary confinement since 1996, when Louise Arbour, presiding a commission of inquiry, called for an end to "long-term confinement in administrative segregation."

Deb Parkes, a law professor at Peter A. Allard School of Law at the University of British Columbia, is frustrated that the government failed to provide a mechanism to force CSC to stop locking prisoners up for extended periods — something she and others called for in committee hearings on the bill.

"The new legislation has layers and layers of reviews, all internal to CSC. And then, at a certain point you get an external review, but even that has no teeth and no enforcement mechanism to actually require that someone be taken out of those unlawful conditions of confinement."

The John Howard Society report, compiled by Ryerson professors Anthony Dube and Jane Sprott, showed that the rate of solitary confinement — which is defined as more than 22 hours alone in a cell — remains high, particularly in Quebec and British Columbia. Worse, many prisoners were kept in such conditions for more than 15 days, which constitutes torture, according to the Mandela rules.

"Even one person in these conditions is unlawful," says Parkes. "They're entitled to a Charter remedy for that. And yet we have these conditions persisting."

Because there is no mechanism for redress and an oversight system that does not prevent solitary confinement, the Liberals' new law does not appear to be responding to the conditions found to violate prisoners' Charter rights.

"I think this sort of shows that without meaningful external accountability, this is going to continue," says Parkes. A spokeswoman for Public Safety Minister Bill Blair says the government is acting, but her comments suggest Blair is struggling with an agency that is reluctant to stop the practice.

Blair "personally intervened to ensure Dr. Doob would have access to useful and adequate data," said press secretary Mary-Liz Power in an emailed statement.

Blair has asked CSC to "gather best practices in regions that are making progress to replicate them across the country as soon as possible."

Blair "has spoken with Commissioner Kelly about SIUs and the state of corrections in Canada. The two will be speaking again in the coming days."

Jen Metcalfe, executive director at Prisoners' Legal Services in Abbotsford, B.C., who regularly speaks with prisoners in the system, points to cultural problems within CSC.

"We hear the same complaints about the same officers over and over again. And I don't know these people haven't lost their jobs. Like, you know, when they're literally beating people and torturing them, when they're employed to keep people safe."

Metcalfe says the ongoing mistreatment of prisoners, including but not limited to solitary confinement, does not help prisoners deal with their problems, which is what is necessary for greater public safety.

"Every element of their lives is so controlled by the state, and there's so much anger and post-traumatic stress disorder and anxiety and paranoia. It's just a place of torture. And if they want to deal with the behaviour, then they have to stop torturing people."