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The ONW Salon:  The federal Liberals are bringing in legislation that will limit the use of solitary confinement for prisoners to a maximum of 15 days, with an independent review process kicking in if an inmate is placed in it more than four times in 90 days. Critics are especially concerned about prolonged segregation for inmates who are mentally ill or prone to hurting themselves.  Are the new restrictions enough, too lenient or too tough? We asked Richard Mahoney, Will Stewart and Tom Parkin. 



Tom Parkin:

Currently, about 400 federal prisoners are in solitary confinement - and almost a quarter of them have been in solitary confinement for more than 60 days. Now we have legislation that may finally set limits on the use of it.

Last fall, Minister of Public Safety Ralph Goodale announced that changes would be forthcoming. These changes come after some disturbing situations.

One key case was Ashley Smith, a 19 year-old woman who killed herself in prison in 2007. Smith was violent and couldn't be controlled by prison guards. She wasn't psychologically well. She was put in solitary confinement for four years.

The other recent disturbing case was Adam Capay. Capay was being held in solitary confinement in a Thunder Bay jail. He cell was continuously lighted. His case turned up in a routine jail tour by the Chief Commissioner of the Ontario Human Rights Commission. It was later revealed the Ontario Deputy Minister of Corrections was being notified on Capay's confinement every month, though the government and Minister claim they were surprised and horrified at the situation. Capay was in solitary confinement for 52 months.

This isn't protection of the public. Or deterrence. Or punishment.  It's torture. And it is shocking that the Ontario government has allowed our society to fall this low.

This legislation is long overdue and I hope it means a complete revisit of the conditions in Ontario's jails.


Richard Mahoney:

Tom sets out some of the history behind the sad and disturbing story of solitary confinement, or “administrative segregation” as it is known in the law enforcement community. Call it what you will, in many ways, this overdue change might well be known as “Ashley’s Law” after Ashley Smith. Her tragic story was brought to light by a coroner’s inquest in 2012 and made many realize the problems in our corrections system and the inappropriate and harmful use of extended “administrative segregation”.

Smith’s case was heartbreaking. She had apparent significant mental health challenges. Her efforts to do harm to herself, and the institutional response to that, were captured on video. It was heart wrenching and frightening. If you watched and read the history, you could not help but come to the conclusion that the system failed Ashley Smith. In the end, Smith spent 1,047 days in solitary.

The inquest had 104 recommendations. When the Trudeau Liberal government was elected in late 2015, Prime Minister Trudeau instructed Justice Minister Jody Wilson-Raybould to work on implementation of the recommendations from that inquest. This week’s announcement is the result of that.

The practice had become over utilized. Corrections officers, staff and other inmates, faced with incredibly difficult situations and dealing with individuals like Smith that can and do harm themselves, utilize the tools they have, in the ways they know how.

As a result of these changes, no inmate will spend more than 15 consecutive days in confinement without having to apply for an external review. It is long overdue and is a mark of progress in how we deal with mental health as a society.


Will Stewart:

There is no question that changes are needed. From international experts to local disturbing incidents and even deaths, all articulate the need for Canada to take action on the way in which individuals are treated and disciplined while in custody. Partisanship aside, it is good to see movement on a pressing issue that has generated far too many troubling headlines.

However, this is yet another half measure of policy that we see from a government that seems to be having increasing difficulty in policy and legislation very early in its mandate.

Further, the headline grabbing nature of the announcement has been used to cover some other surprising parts of the bill that have nothing to do with solitary confinement.

Just last month Justice Howard Sapers released his independent review of Ontario Corrections. In that he recommended capping disciplinary action at 15 days. The United Nations says 15 days.

My Liberal friend will tout that the federal Liberals have done the same thing, but he knows full well that the legislation, if it ever passes, will first start with 21 days as a cap for another two years.

The CBC reports that Mary Campbell, a former Director General at Public Safety Canada, rightfully asks if that means we are legislating torture (her reported words) for another two years. If everyone agrees 15 days is the accepted max, why are we not moving there now?

And all of that assumes the bill passes. Why introduce the bill in the dying days of the House of Commons with the rumoured prorogation on the horizon, which would wipe this bill out? Sceptics would say that is either an indication of no prorogation or an indication that this is a communications exercise, not an effort at reform.


Tom Parkin:

As Will points out, Bill C-56 gives Public Safety Canada two years to comply with the United Nations definition of solitary confinement as torture. There is really no explanation of why it isn't being ended immediately.

The continuing horror-show going on in the jails run by Kathleen Wynne's government raises the same question - why did this happen and why is it being allowed to persist?

There are no answers. But there are hints.

Late last fall, the Wynne government announced it would hire 200 more jail guards to focus on inmates with mental illnesses and in solitary confinement. The splurge of hiring came as the case of Mr. Capay arose and the Ontario prisons Ombudsman was about to report.

My deep concern is that this is, and always has been, about money and cuts. Understaffing leaves guards unable to cope - and they use solitary confinement because it makes it possible to run the jail with the staff levels assigned. That this, inevitably, gets downloaded onto the mentally ill prisoners is not only a disaster for them, it means rehabilitation doesn't happen where it can. It means psychological treatment isn't being provided. It means where prisoners are turned back out into the general population there is more risk than there needs be.


Richard Mahoney:

Will faults the government for not doing more. Interesting. I did not hear him or any of his Conservative friends saying so in the almost ten years they were in office. Even after Ashley Smith’s death, and those of others, brought attention to this issue, the Conservatives carried on with the practice. The inquest was in 2012 - so they had three years to consider reforms and did nothing. So it is a bit rich for him to say what he says now.

The reality is that the 15-day standard established in Bill C-56 is the threshold recommended by the UN’s Mandela rules, and a huge change to the system. It is true that some stakeholders have high expectations but, if this legislation is passed, Canada would be at “the forefront of best correctional practices around the world when it comes to administering solitary confinement” according to Ivan Zinger, the federal Ombudsman for prisons, and a long time advocate of reform himself.

 It is a stretch by Will and Tom to find partisan fault here. The reality is this practice is deeply imbedded in our system, and has existed under governments of all political stripes. It is time for reform, and good to see a government, and a political party, doing it.

As for Will’s point about prorogation, he surely knows that, if that happens, the bill can and will be reintroduced at the same stage of debate even if prorogation does occur.

Finally, I guess when Will suggests that this headline grabbing announcement is being used to “cover some surprising parts of the bill that have nothing to do with solitary confinement” he is surely speaking of the moves Minister Goodale has announced to clean up the constitutional mess that the Harper government created with its’ Abolition of Early Parole Act - a clear breach of the Charter of Rights, according to a unanimous   ruling of the Supreme Court of Canada.

The Harper government loved to whip up fear by constantly reminding us of an imaginary rise in the crime rate. They also loved to break the laws of our country with measures to address this fear. This announcement cleans up some of that mess, by reinstating the right to apply for early parole, when cases warrant. Parole is one of the ways we protect ourselves as a society. But you wouldn’t know that by listening to the Conservatives, or by their actions.


Will Stewart:

From a strategy point of view, I think the Liberals need to be concerned about alienating their core and the new voters that gave them their majority and who expect reforms like this as a condition of their vote, but are frustrated that nothing seems to be getting done.

Trudeau has passed half the bills that Harper had passed at this point in the mandate. Will this one be different?

The item that the Liberals are not talking about in their flurry of self-promoting press releases is that they are making fundamental changes to parole by bringing in “accelerated parole review” at a mere 1/6th of a person’s sentence. This move can mean that a person convicted of a serious crime and sentenced to six years in prison will be eligible for parole in one year. Somehow that does not feel right to Canadians.

The Trudeau government loves to play with numbers - from budgets balancing themselves, to criminals facing a fraction of their sentences, to 15 days in solitary confinement really meaning 21 days for the next two-plus years.

Again, from a strategy point of view, I am not sure that Canadians will accept the affinity this government has for saying one thing and meaning another. At the end of the day, it is that pattern of behaviour that is the vote risk on this.

How long can they go blaming the other guys as Richard does here? If Ontario is any indication, about 14 years apparently.

You are in government. Time to act. You are almost half way through your mandate from Canadians and progress on Liberal "reform" has been slow to say the least. This two year plus runway on this bill is another example.


Richard Mahoney is a lawyer with deep experience in politics and governance.  He is a former senior advisor to the Rt. Hon Paul Martin, a former Campaign Chair and President of the Ontario Liberal Party. Will Stewart is Managing Principal at Navigator, served as Chief of Staff to several Ontario Ministers and often appears as a national affairs commentator.  Tom Parkin is a veteran NDP strategist, columnist and a frequent commentator on national issues. 











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