This post marks the first in a series of opinion pieces we will be publishing to hear voices on important issues in criminal justice.  This piece is by John Howard Canada Executive Director Catherine Latimer, and it marks the beginning of John Howard Week.

Post #185

930 words; 4 minutes to read

Audio summary courtesy of volunteer Averi Brailey.

It has been 25 years since the Arbour Report levied a crushing indictment against the Correctional Service of Canada (CSC). Significant transformation should have been immediately launched and a new era of compliance with the rule of law should have been in place by now.  But little, if anything, changed in the fundamental operation of our federal prison service.

A striking example of the failure to respect the rule of law and the rights of prisoners is evidenced in the recent solitary confinement shell game.  Even with growing medical evidence of the harms of isolated confinement, the Correctional Investigator’s Report showing that a disproportionate number of prisoner suicides in Canada occurred in isolated confinement. UN minimum rules for the treatment of prisoners prohibits solitary confinement for more than 15 consecutive days and the Ashley Smith Coroner’s recommendations called on the government to limit isolated confinement.

Neither CSC nor the government acted.  Often they claimed that solitary confinement wasn’t used in Canada.  The most common form of isolated confinement was called ‘administrative segregation’, as though the different label could excuse the suffering of indeterminate isolation without adequate procedural protections and independent oversight.

Courts recognize violation of rights

Madame Justice Arbour forewarned that other parts of the justice system were needed to persuade the correctional machine that ‘administrative segregation’ violated prisoners’ Charter rights.  The British Columbia Civil Liberties Association and the John Howard Society of Canada turned to the courts in BC and the Canadian Civil Liberties Association did so in Ontario.  Both succeeded at the Courts of Appeal with decisive judgements against continued use of solitary confinement.

In response Department of Justice lawyers argue that the law itself was consistent with the Charter but it was just routinely misapplied by the correctional service.  While this confirms that the rule of law is not respected by CSC, it raises the question about why this systemic mismanagement was not corrected.  Section 4 of the Department of Justice Act imposes on the Minister of Justice the duty to ensure that the administration of public affairs is consistent with the law.

Government obligated to act

If members of the Justice Department publicly indicate that a federal statute is being administered in a manner that violates the Charter rights of state wards, isn’t their Minister’s statutory obligation to ensure compliance with the law triggered?  What happens in Cabinet is not made public so perhaps the Minister discharged his duty through the decision to forego the appeal to the Supreme Court and, instead, to repeal and replace the impugned legislative provisions.

But surely, it is still the duty of the Minister of Justice to ensure that CSC’s administration of the new law does not result in the same violation of Charter rights.  Bill C-83, which replaced administrative segregation with Structured Intervention Units (SIUs), has been in place since November 2019.  To allay concerns of the former litigants and others, a panel chaired by Prof. Anthony Doob was appointed to monitor and report on the implementation of the new legislation.

Failure of new policy revealed

Despite the predicted minimum 4 hours per day out of cells with 2 hours of meaningful human contact and significant resources being allocated to make that happen, the data to evaluate the implementation of the SIUs was not provided to the panel.  The Minister intervened and Prof. Doob later received the CSC data.  He and Prof. Jane Sprott analyzed the information and produced reports that were made public and covered by the media.

Alarmingly the data revealed that the SIUs are not correcting the Charter deficiencies of the previous regime.  The independent oversight mechanism is not adequate to shorten stays in SIUs; many prisoners are being detained in circumstances that meet the UN definition of solitary confinement; and about 10% of the placements or 195 prisoners met the UN definition of prolonged solitary confinement which it prohibits as a form of torture.

Solitary as torture

The information that Canadian federal prisons are “torturing” Canadians through prohibited prolonged solitary confinement did not result in any immediate corrective action by CSC or their political masters.  While professing to “take it very seriously”, the focus seems to be on improving the implementation of the SIUs rather than prohibiting prolonged solitary confinement.  The better answer is to do both and to direct that prolonged solitary confinement stop immediately.  The Correctional Investigator also reported that the extreme isolation used by CSC to combat Covid is not compliant with domestic and international legal frameworks.

Prohibited prolonged solitary confinement is being practiced both within and outside of the new SIUs.  These ‘reforms’ that deliver the same abuses that courts found violated the Charter blatantly disrespect the rule of law.  With the Arbour Report now 25 years old, surely it is time for other components of the justice system to compel correctional authorities to respect the rights of prisoners and the law.  Once the courts have found a Charter breach, perhaps they should retain jurisdiction until the breach is truly remedied.  Perhaps it is time to explore prison receiverships that would take over the leadership of an executive agency to force it to comply with its constitutional obligations.  This sleight of hand that maintains an illegal status quo at the expense of rights and the rule of law must finally come to an end.

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