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The ONW Salon: Should solitary confinement be banned in Canadian prisons? 

Susanna Kelley (Moderator):  4,500 inmates are put in solitary confinement for an average of 24 days each year. An Ontario judge has ruled what is now called "administrative segregation" should be limited to five days only, deeming that anything longer unconstitutional.  But should the practice be banned altogether, as many mental health advocates contend? Richard Mahoney, Will Stewart and Tom Parkin weigh in.


Tom Parkin:

If you believe the purpose of imprisonment is to inflict pain I can see how solitary confinement is something you like.

However, if, like me, you believe imprisonment is supposed to be about keeping people safe, rehabilitation and humane punishment, I think solitary confinement is acceptable only under very limited and managed conditions. Which is the upshot of Justice Marrocco’s decision.

The Ontario Liberals have had an abysmal record on the use of solitary confinement. That is exactly why we are having this discussion. I cannot say for sure that their corporate tax cuts and budget cuts, which are reducing per-student education and reintroducing hallway medicine, are the cause of the Liberals’ overuse of solitary confinement. But it does seem that an argument against reversing this situation is that it will be expensive.

We would be naïve to believe that people in our prisons do not need to be protected from some prisoners who are violent. We also know there are prisoners who are prone to violent acts against themselves and need to be in a controlled environment. We have seen all these situations and they are the legitimate reasons for using some separate confinement.

However, it seems that confinement makes little or no effort to reduce the violence—indeed, it increases mental stress and violence.

Solitary confinement as practiced is cruel. Marrocco notes that extended use can cause “permanent” mental injury.

So much for rehabilitation.

Solitary confinement is often unmonitored—we’ve seen that end in suicide. There is no human contact for days and weeks upon end. There is no plan to address the mental health issues driving violent and self-harming behaviour. This is a system reacting in crisis.

Solitary confinement, it seems, is a way of boxing away people who our prison system has no resources to help. Not every person can be rehabilitated. But it is our obligation to try. Not to make matters worse and prolong their internment by aggravating mental health conditions.

The way I read Justice Marrocco's decision, it is a call to ensure that we have systems in place to monitor and protect against cruel punishment.

It's not the Justice's place to tell the government what to do, only what the Charter says they may not do.

But given what we know about the concentration of Indigenous people and people with mental illness in our jails, perhaps there is now an opportunity for a sweeping review of what's happening in our jails and whether what our governments are doing is really the best path for our society.

Will Stewart:

It may surprise many that Tom and I come at this from similar points of view. In the end, I suspect that we differ on some of the finer points, but I would agree that the first duty of the state to prisoners is to ensure that they are safe from harm and that every attempt is made to rehabilitate those who have a desire to change.

That includes mental health treatment of course, but it also includes skills training, substance abuse treatment, as well as education where needed and applicable.

Where Tom and I may differ is perhaps on the question of administrative segregation and solitary confinement in general.

To be clear, the two are needed and, even in the recent ruling, constitutional, according to Justice Marrocco.

Marrocco found administrative segregation itself to be constitutional, even when applied to inmates aged 18 to 21 or the mentally ill. Marracco also refused to declare placement in segregation for more than 15 days to be unconstitutional, saying proper monitoring of inmate by health professionals is "sufficient to negate the potential cruelty of indefinite segregation."

There is certainly a need for additional punishment for inmates who pose a danger to other inmates. If we take away the option of segregation from the general population, what is the motivation for inmates to follow the rules?

A report by correctional investigator Ivan Zinger found that a desegregation strategy that was implemented three years ago in Canada, in an effort to curb the number of inmates placed in administrative segregation, has had an unintended consequence of increased assaults in prisons.

Where Justice Marrocco (and Tom) focused their commentary is the right place: that there is not sufficient oversight to ensure that this disciplinary measure is used effectively and monitored for safety. I think we can all agree that having the warden of the prison acting as investigator, adjudicator, and over see all at once is not the best approach.

That approach does not follow what Canadians expect in the separation of police and courts in our legal system. The only other place I know that follows the same model is having the Lobby Commissioner of Canada setting the rules, investigating people, determining their guilt, and deciding their punishment while at the same time retroactively setting rules. Perhaps that says something about my chosen profession, but I think the point is that separation of the functions for inmates and lobbyists should take place.

Richard Mahoney:

The recent decision by the distinguished Mr. Justice Frank Marrocco of the Ontario Superior Court puts the age-old practice of solitary confinement, or "administrative segregation", as the practice is sometimes known, squarely into relief.   Justice Marrocco has given the federal government one year to improve and change the process of oversight of any decision of a prison warden to place an inmate into administrative segregation.   That’s because he found that the current law does not have a process in place to review the decision of a warden to segregate the prisoner. That practice can leave an inmate without human contact for long periods of time.   The damage that can do to the mental health of an individual, and the risk to safety is acute.  

Numerous inquiries over the years have called the wisdom and humanity of these practices into question.  I must admit that I am uncomfortable with the concept. That said, I do not live and work in the corrections system, and I understand those that do so every day point to this practice as necessary to both keep order and keep people safe.  

The Harper government, intent on being seen as “tough on crime” was reluctant to revisit the issue and change the practice, or provide more oversight, even after the findings of the Ashley Smith inquiry, a heartbreaking example of how our system can fail inmates with mental health issues who pose a risk to themselves and to others.  That inquest did a great job of showing us what not to do, but, not surprisingly, did not provide a clear path as to how best to deal with difficult cases, although recommendations were made, and I understand that some of them have been implemented.  To me, the tragedy of all this is that many, many people in our corrections system are actually people with mental health issues, who, arguably, ought not to be in the corrections system at all. But that is another topic for another day.

Marrocco's decision does recognize that the practice may be necessary in certain situations but finds fault with the oversight of the practice and the decision–essentially it demands an accountability regime.  That seems to me a very reasonable limit on the practice and a judicial advance on how we deal with these matters.


Tom Parkin:

Where I have a difficulty with Will's approach is in the idea that solitary confinement is a punishment. Prison and the loss of liberty for a time is the punishment—no more, no less. I understand there needs to be consequences when an inmate breaks rules. But in my opinion, solitary confinement should not be used as punishment. It should only be used to maintain safety within the prison.

When we believe solitary confinement is a punishment we are already well on the way to being cruel, to accepting it is supposed to be a horrible and destructive situation. It becomes a modern dungeon. Or not so modern.

If prisoners are being separated from the general population for safety reasons, rather than as punishment, I think we stand on firmer ground. And the outcome will be a type of separation based on safety rather than punishment.

What we seem to have now are some very mentally unwell people being thrown into extended and extreme punishment regimes, which have ended with tragedy and greater mental injury.

Let's also remember that to say that solitary confinement per se is not contrary to our Charter is no endorsement of the practice. It doesn't suggest what is better from a financial, social or rehabilitative perspective. It just tells the Ontario Liberals to stop violating the Charter's cruelty provisions.

The question of how to operate prisons within the Charter is a political decision. I will not pretend to be more than a layperson on these issues. But—and Will makes similar points—the lack of on-going treatment, mental health support and training is obviously a question to probe deeply. It goes far farther that just whether certain forms of solitary confinement are unacceptable in Canada.


Will Stewart:

I knew that if we kept going long enough that Tom and I would find something to disagree about. I do believe that you need a threat of more punishment if you are to keep order. Solitary confinement provides that. I think the evidence, reports, and even Justice Marrocco's ruling all support that position.

In order to separate this a bit, it should be said that there are reasons for both administrative segregation and solitary confinement, but in the end we get to the same place.

Administrative segregation occurs when a warden believes an inmate poses a risk to themselves, and therefore must be monitored more closely, or in an attempt to diffuse a volatile situation.

Solitary confinement is employed as a disciplinary measure beyond incarceration for a prisoner, usually for violations of prison regulations. And both are allowed in the recent decision.

I do worry that Tom's definition is a distinction without a difference. He is okay with administrative segregation to keep inmates safe. Great. If an inmate misbehaves and is sent to solitary confinement as punishment, could it not be seen as being a measure for keeping inmates safe?

I think it ends in the same place. This is why it is important for the government to focus on the ruling itself, and the finding on constitutionality, not on loose definitions of terms.

The judge focused in on the lack of oversight, which Tom references as well. I think that is where the debate should be.

Therefore, it's not necessarily the practice of administrative segregation, rather the persons in power who implement the practice. Situations where wardens overstep their authority or don't abide by the law should be taken very seriously and the proper legal channels should be explored to bring them to justice.

In saying that, prisons are inherently unsafe environments and instances will occur where the safety of individuals is put in jeopardy. Banning administrative segregation entirely, a tactic which is proven to diffuse dangerous situations, could lead to volatile situations escalating, creating further harm to inmates.

Which would certainly impact on the ability to rehabilitate the inmate, which Tom and I agree needs to be the focus.

The government needs to focus on implementing a third party to oversee the use of this punishment and protection option. Both are important, but we need transparency in the process. Until the government chooses to act on the decision, any inmate harm lies at their feet.


Richard Mahoney:

Tom’s comments above are typical in two ways.  First, they are typically thoughtful and well informed.  Secondly, they are also gratuitously partisan. While we wrestle with the important concepts raised in Mr. Justice Marrocco’s thoughtful ruling, Tom finds time to blame this on the Ontario Liberals.  That’s unfortunate and discredits his otherwise smart arguments.  

The fact is that neither the Ontario Liberals, the Ontario New Democrats nor the Ontario Conservatives have put the oversight in place that Mr. Justice Marrocco recommends when in government.  But Tom wants us to see this as a Liberal thing.  I don’t think that is right, or fair, or helpful to figuring out how we ought to handle this issue, and answer the question put to us today.

Our moderator Susanna Kelley asks the important question:  should the practice now be ended as many mental health advocates contend?   My honest answer to that is I don’t know.   I am not an expert on corrections or on mental health.  But I am uncomfortable with the practice, and, in some cases, horrified by its consequences as mentioned above.  

Our friend Justice Marrocco finds as a matter of fact that there are ways to administer the practice humanely and with proper oversight, but that limits should exist on how long and how segregated an inmate should be, and that there should be accountability and oversight of a warden’s decision to segregate a prisoner.  That seems sensible and fair to me.  

I think we should also use this opportunity given to us by this decision to review these and other practices in our corrections system.   There may be other better ways to maintain safety and order in the system.   I know we, as a society, have sometimes failed those in our care and custody.   And I think we can do better.  I hope this decision leads to an honest and thoughtful review of this and other practices we now employ in our corrections system and a debate that is not based on the blame game or thoughtless “soft on crime” wedge politics.  I hope that discussion centres on how do we best deter crime, keep our society safe and treat those in custody appropriately and safely, with an opportunity where appropriate to reintegrate into society.


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 Parking is a veteran NDP strategist, columnist and a frequent commentator on national issues. 





























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