By: Sam Mathers, News Editor
The controversy surrounding solitary confinement – or as it is referred to in corrections, disciplinary and administrative segregation – has long been making headlines in Canada. Just a few months ago, we heard of Adam Capay, a 24-year-old man who spent four years in solitary confinement in the Thunder Bay District Jail. Now, a $600 million class action lawsuit (the first ever in Canada on behalf of federal inmates) has been certified, potentially allowing tens of thousands of people to seek compensation. The lawsuit alleges a violation of the rights of mentally ill inmates, regarding solitary confinement and inadequate access to medication. Represented by James Sayce, the class includes inmates who have been in a federal prison between November of 1992 to now, and who were diagnosed with a mental illness before or during their time in jail.
The lawsuit was launched in 2015, under a Conservative government that defended the practice of solitary confinement as a means for safety and security. The statement of claim, filed in July of 2015, states that “in all circumstances, the use of Solitary Confinement for extended periods of time has a severely detrimental impact on the psychological well-being of a Mentally Ill Prisoner. Canada relies on this practice to contain and manage the Class rather than to treat their underlying illnesses. The use of Solitary Confinement on Mentally Ill Prisoners for extended periods constitutes cruel and unusual punishment.”
Just a few months later, the change in government also resulted in a change in attitude toward solitary confinement. Justin Trudeau called for prison reform, and ordered the Justice Minister to implement a set of recommendations from the inquest into the death of Ashley Smith, a 19-year-old who died by self-inflicted strangulation while in solitary confinement and on suicide watch at the Grand Valley Institution for Women. These recommendations would ban long-term solitary confinement in federal prisons and not allow vulnerable prisoners, such as those with a mental illness, to be placed in solitary confinement as a means of managing them.
Since then, it has been stated that the number of inmates in administrative segregation in federal prisons has been reduced by half. But that does not account for the inmates in provincial facilities, like Adam Capay. The provincial numbers are not well known, because provinces are not required to report detailed figures.
In their most recent review, the Ontario Human Rights Commission reported 6,067 segregation placements with 1,383 of them exceeding 15 days – the benchmark set by the United Nations for what constitutes torture. The OHRC stated that “segregation is not being used as a last resort, but rather a routine management strategy across Ontario’s correctional facilities.”
While disciplinary segregation can only occur when a prisoner is found to have committed a serious misconduct, administrative segregation is a major grey area in corrections – a kind of loophole. An inmate can be placed in administrative segregation for their own safety, to maintain the safety of the institution, to ensure there is no interference with an ongoing investigation, if an inmate is alleged to have committed a serious misconduct, or if an inmate requests to be in solitary confinement. Oftentimes, it is the mentally ill inmate that is put in administrative segregation “for their own safety.” This is largely due to a lack of training around mental illness, leaving corrections officers not knowing what else to do.
Regulation 778, under the Ministry of Correctional Services Act, requires prisoners being placed in disciplinary segregation must be given notice of misconduct allegations, an opportunity to dispute those allegations, reasoning for the misconduct decision and disciplinary measures imposed, and the right to have the misconduct decision reviewed by the Minister. Furthermore, an inmate cannot be placed in disciplinary segregation for more than 30 days. Administrative segregation, on the other hand, has no equivalent due process requirements, and most importantly, no time limit. Of the 6,067 inmates placed in solitary confinement last year, only 4.3% were placed in disciplinary segregation. Most troubling, of the inmates placed in administrative segregation, the Ministry of Community Safety and Correctional Services cited “multiple placement reasons” with no further information for 1,311 inmates, and simply “unknown placement reasons” for 370 inmates.
Just as troubling, Adam Capay’s 4-year stay in solitary confinement was not reflected in the statistics. The OHRC report stated that “this may be because the prisoner was transferred during this time period, resulting in the continuous segregation actually being counted as multiple placements, with the ‘clock’ starting over upon each transfer. Alternatively, it may indicate that this prisoner’s segregation placement information was omitted from the statistical information provided to the OHRC.”
As stated by the OHRC, it is critical “for the government to collect and publicly release human rights based disaggregated data that sheds light on what is occurring behind the closed doors of Ontario’s correctional facilities.” This statement is true for the rest of Canada. Hopefully the country’s first class action lawsuit on behalf of federal inmates will not only bring about compensation, but real change for one of society’s most overlooked groups of individuals.