The use of prolonged solitary confinement in federal prisons is before the courts this week in a case brought by the Canadian Civil Liberties Association, which argues that the practice constitutes “cruel and unusual treatment or punishment.”
The CCLA is arguing that Canada’s use of solitary confinement of inmates in prisons violates s. 12 of the Canadian Charter of Rights and Freedoms, and is inconsistent with the revised UN Standard Minimum Rules for the Treatment of Prisoners (known as the Nelson Mandela Rules), which, among other things, state that solitary confinement should not exceed 15 days and should “be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review … ”
Before Ontario Superior Court Associate Chief Justice Frank Marrocco this week, CCLA’s legal team, led by Jonathan Lisus of Lax O’Sullivan Lisus Gottlieb LLP and Michael Rosenberg of McCarthy Tétrault LLP in Toronto, brought expert evidence as to “the significant harm” caused by solitary confinement.
“Our expert evidence is … from folks who treat inmates who come out of solitary confinement,” and have suffered the adverse effects, Rosenberg told Legal Feeds. Most extreme of these is suicide, including the high-profile cases of teenager Ashley Smith in Ontario in 2007, and Eddie Snowshoe in Alberta in 2010. (The Canadian Association of Elizabeth Fry Societies has reported that suicide rates in Canadian prisons are seven times higher than in the general population, and that 22 per cent of prisoners who were found to have committed suicide did so while in segregation.)
The deprivation of meaningful contact for inmates in solitary confinement “in and of itself is a breach of the Charter, s. 12,” says Rosenberg. “It’s not something Canada has really addressed.”
Expert witness Juan Mendez, a professor of human rights and international law at the Washington College of Law of the American University in Washington, D.C., and a former United Nations Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, testified that the Mandela Rules represent an objective standard for determining whether a person has been subjected to cruel, inhuman and degrading treatment; and, he said, “there has been quite a solid consensus that anything beyond 15 days is in violation of international standards … even with mitigating circumstances.”
According to the Mandela Rules, “Canada is offside,” Rosenberg says.
“The experts say this practice is harmful,” and Canada has not brought forth compelling evidence, including from its own Correctional Services staff, to indicate otherwise, he says. “Canada has all sorts of policy and procedures that ostensibly take into account the impact [of solitary confinement] on inmates’ health [but] this practice itself is just so dangerous that you need hard limits.”
The UN’s Mandela Rules define solitary confinement as confinement of prisoners for 22 hours or more per day without meaningful human contact. The Crown argued this week that segregated inmates have meaningful human contact with prison staff such as wardens and nurses, says Rosenberg. “They’re also saying 22 hours a day [of solitary confinement] is the new standard, as of Aug. 1st.”
On that date Correctional Service Canada implemented a new policy, through Commissioner’s Directive 709, that provides segregated inmates with two hours of time outside their cells each day, plus time to shower, increased from one hour previously.
Notwithstanding that time spent showering should still be treated “as solitary confinement,” says Rosenberg, the fact remains that segregated inmates continue to spend most of their day locked in very small cells.
“Some are windowless, and tiny; the average is probably 70 square feet,” he says. “They’re very spare, very dirty, the doors are for the most part solid steel with a little three-inch by five-inch piece of Plexiglas to look out into the hallway,” and a slot in the door that meals are passed through.
Although there has not been a chance to cross-examine on statistics of segregated inmates, says Rosenberg, corrections officials have indicated there were about 6,500 solitary confinement admissions into the federal prison system last year, representing about 4,500 distinct inmates. At any one time, he says, there about 400 inmates in segregation in federal prisons in Canada, including youth (under the age of 21) and the mentally ill.
“This is an urgent case,” Rosenberg adds, “where there are real people, in conditions we say breach their Charter rights … ”
The CCLA has also said that Correctional Service of Canada, by defining certain prison units as “special needs,” “mental health observation,” or “intensive psychiatric care,” often avoids the current review requirements. Rosenberg says that “all inmates are subject to solitary confinement without any meaningful review, and we need a remedy for these folks, and that's what we’re hoping to get from the court.”
The Crown was not immediately available for comment.