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Solitary by another name is just as cruel

The Globe and Mail by Kim Pate 12 November 2018

Government legislation billed as eliminating the damaging and dangerous practice of administrative segregation – better known as solitary confinement – is in reality, a cynical exercise that merely rebrands this cruel treatment.

I am shocked by the linguistic trickery in Bill C-83: An Act to amend the Corrections and Conditional Release Act and another Act.

Rather than ending segregation, Bill C-83 rebrands administrative segregation as “structured intervention units.” It allows the Commissioner of the Correctional Service of Canada to designate any unit or penitentiary as a structured intervention unit without imposing restrictions on the nature or number of cells. This creates the risk that an ever-increasing number of prisoners will be segregated – an all-too-easy answer to managing mental-health issues and other needs that should be addressed through community supports rather than by restrictive confinement.

These measures fly in the face of the recommendations of the jury in the Ashley Smith inquest, which said prisoners should not be segregated and those with mental health issues should be in community-based mental-health facilities, not prison.

The government has also boasted that Bill C-83 will see prisoners in these new units spend a minimum of four hours a day outside their cell, an increase from the current two-hour-a-day requirement. The premise is that 22 hours of isolation per day meets the definition of segregation of a prisoner and attracts certain, far too limited constitutional protections – but that 20 hours of isolation per day under the same torturous conditions does not. This should make clear why we need a true end to segregation and separation, by any name.

Medical experts have long recognized that segregation has permanent negative impacts, from anxiety and paranoia to severe psychological pain and suffering, as well as permanent psychiatric disability.

Courts have also found that segregation’s harmful effects can begin almost immediately and have ruled that segregation is unconstitutional and discriminatory against Indigenous people and those with mental health issues. These groups are just two among many, including women and visible minorities, that are unjustly and unjustifiably over-represented in segregation.

While proponents of Bill C-83 have argued that imposing a minimum of four hours outside of cells will allow for meaningful access to programs, health care and human contact, this simply replicates the current situation in maximum security units for women, where prisoners are segregated in small, isolated cells.

Despite progressive-sounding requirements about access to services, individuals in those units are severely limited in their access to programming and health care. They experience psychological harm practically indistinguishable from segregation.

Nor will Bill C-83 change the current lack of effective external oversight of correctional decision-making. All decisions about when and for how long prisoners are to be segregated would be made by a correctional services administrator alone and without the review of any third party. This represents another step away from former Supreme Court justice Louise Arbour’s recommendation that judicial oversight of corrections is necessary to prevent the abuse of segregation.

Bill C-83 may also reduce the ability of Indigenous prisoners and parolees to transfer to their communities, a measure included in the current law to address the over-representation of Indigenous people in federal prisons. Nor will the bill address chronic failures on the part of corrections staff to ensure prisoners have access to these transfers – a failure noted by the Office of the Correctional Investigator in its recent annual report.

The government described Bill C-83 as ending the practice of segregation by the Correctional Service of Canada and providing the government’s response to the recommendations of the jury regarding the death by homicide of Ashley Smith after she spent months on end in segregation cells. Bill C-83 does neither.

Ottawa cannot declare that segregation has been eliminated, while failing to address the horrors associated with this practice and gutting what minimal restrictions courts have placed on its use.

The public response to Bill C-83 has demonstrated that there is interest in meaningful change. We must end segregation and ensure judicial oversight of corrections, not merely change the labels on doors and further limit correctional accountability.

Senator Kim Pate was executive director of the Canadian Association of Elizabeth Fry Societies. She represents Ontario.