iPolitics with Kim Pate 21 August 2019
Penitentiaries in Canada must adopt the Liberal government’s replacement for solitary confinement in November.
Sections of a new federal law overhauling the rules for solitary confinement, known formally as administrative segregation, will come into force on Nov. 30, as dictated in an order-in-council approved by cabinet this month. They include provisions authorizing penitentiaries to establish structured intervention units (SIUs).
According to the government, inmates placed in SIUs will still retain access to health care and rehabilitative programming, and are entitled to four hours outside of their cells daily, instead of two under the current system, as well as two hours of “meaningful human contact” every day.
The order-in-council also covered sections in the legislation permitting the appointment of independent, external decision-makers, new rules on when strip searches are permitted, and the creation of health-care units in a prison.
Under the new law, the head of the correctional facility must rule on whether to keep a prisoner in an SIU after five days of their admission, and the corrections commissioner would then need to approve of keeping an inmate in an SIU 30 days after that decision and every 60 days afterwards. An external decision-maker appointed by the public safety minister would need to review an inmate’s confinement in an SIU in certain circumstances.
After a B.C. Court of Appeal ruling in June struck down indefinite use of administrative segregation, Ontario Senator Kim Pate said Senate amendments rejected by the Liberals to the new legislation would have ensured it would survive a similar legal challenge because it would have required the Correctional Service of Canada (CSC) to apply to a superior court in order to keep a prisoner in isolation for more than 48 hours.
However, the Liberals countered that the ruling didn’t make any findings about the constitutionality of the new law, with the ruling specifically mentioning the legislation was not before the court and it would abolish administrative segregation.
In a statement after the legislation received royal assent in June, Public Safety Minister Ralph Goodale said the federal government will introduce a “regulatory package” to help implement the act that will establish processes to “provide procedural fairness to inmates, clarify roles and responsibilities, and ensure an open and transparent approach to decision-making.”
Infrastructure changes and hiring of staff to implement the bill, he said at the time, are expected to be completed by November, with provisions repealing administrative segregation and introducing SIUs also expected to “be in force by this time.”
Scott Bardsley, a spokesperson for Goodale, told iPolitics the government is “looking forward to announcing the Implementation Advisory Panel and Independent External Decision-Makers … in the near future.”
The Liberals also claim that the new law will also increase mental health services and Indigenous supports in the correctional space, while bolstering independent oversight of Canada’s correctional system.
Inmates are placed under administrative segregation generally when they are seen as a threat to others in the institution or their safety could be threatened by associating with other inmates.
Calls for reforms grew after 19-year-old Ashley Smith died by suicide in 2007 after spending over 1,000 days in solitary confinement.
Federal correctional investigator Ivan Zinger said the CSC almost halved the number of inmates in administrative segregation over the past seven years, dropping from 710 in 2011 to 341 in 2018.
However, he warned in an interview with iPolitics last fall that the government’s replacement could lead to more prisoners landing in “segregation-lite” conditions.
Inmates who have been put into transitional units, secure units or special-needs units have a “very restrictive routine,” along with lengthy times spent in the cell, Zinger said, cautioning that the new law is a “widening of the net of those restrictive environments.”
“There’s no procedural safeguard,” he argued.
“We may end up with a regime that touches more people and that is very restrictive.”
The legislation was passed by the Senate in the spring after the addition of several late-stage amendments.
Among the changes approved by the governing Liberals were requiring a mental health assessment of all inmates within 30 days of admission into federal custody and within 24 hours of being moved to an SIU, and rearranging a section of the bill to emphasize the possibility of transferring inmates to outside hospitals.
Kim Pate is a Member of the Order of Canada and recipient of the Governor General’s Award.