OHRC obtains Human Rights Tribunal Consent Order to keep people with mental health disabilities out of segregation
On January 16, 2018 the Human Rights Tribunal of Ontario (HRTO) issued a Consent Order (also available on CanLii) requiring that the Ontario government will not use segregation for any individuals with mental illness in correctional facilities, except in the most exceptional circumstances.
The Order requires Ontario to take specific steps, with detailed timelines, to keep people with mental illness out of segregation. This includes implementing a system to identify individuals with mental health disabilities in the correctional system, accurately track segregation use, and monitor the health of any individuals placed in segregation. The Order also includes accountability and transparency mechanisms, like expert involvement in implementation, the appointment of an Independent Reviewer tasked with monitoring compliance, and requirements that Ontario collect and publicly report data on its ongoing use of segregation.
History of human rights proceedings leading to the Consent Order
The Order arose from a series of human rights proceedings relating to the use of segregation in Ontario’s prisons.
Christina Jahn’s human rights application
The proceedings originated with a 2012 human rights application filed by Christina Jahn against Ontario’s Ministry of Community Safety and Correctional Services (MCSCS). At the time of her 2011 and 2012 incarcerations at the Ottawa-Carleton Detention Centre, Ms. Jahn was a woman living with mental illness, addictions and cancer. She alleged that she was placed in segregation for the entire period of her incarcerations (approximately 210 days) and experienced brutal and humiliating treatment because of her gender and mental health disabilities.
The OHRC intervened in the case to address the systemic issues that led to Ms. Jahn not receiving appropriate mental health services and being placed in segregation. An additional concern was the fact that women in Ontario’s correctional facilities did not have access to the same mental health services as men.
2013 Jahn v. MCSCS settlement agreement
In 2013, the parties reached a landmark settlement agreement providing for a wide range of public interest remedies to address the use of segregation and treatment of prisoners, particularly women, with mental health disabilities in Ontario’s correctional facilities. As part of that extensive agreement, Ontario agreed to prohibit the use of segregation for any individuals with mental illness, except as a last resort.
This was followed by a further 2015 agreement requiring Ontario to provide individuals in segregation with an information handout about their rights.
2017 Contravention of Settlement Application
Since the original Jahn v. MCSCS settlement agreement in 2013, the OHRC has continued to voice concerns about Ontario’s overuse of segregation and discriminatory treatment of people with mental health disabilities in Ontario’s correctional facilities.
In September 2017, the OHRC filed a contravention application with the HRTO alleging that the government had failed to comply with the public interest remedies in the 2013 Jahn v. MCSCS settlement agreement. In particular, the OHRC alleged that Ontario had failed to meet its legally binding commitments to prohibit the use of segregation for people with mental health disabilities, provide mental health screening and services, and accurately document, review and report on the use of segregation.
OHRC v. Ontario Consent Order (2018)
On January 16, 2018, with the consent of the OHRC and Ontario, the HRTO issued a Consent Order resolving the 2017 contravention application.
The Order requires Ontario to:
- Achieve operational compliance with the original Jahn public interest remedies (including mental health screening, access to mental health services, and prohibiting segregation barring undue hardship for people with mental illness)
- Undertake a series of compliance reviews
- Use a baseline definition of segregation for the purposes of meeting its ongoing Jahn obligations, as well as its additional obligations under the new settlement; segregation will be understood to include at least all circumstances where prisoners are physically isolated and confined to a cell for 22 hours or more per day
- Track segregation placements based on conditions of confinement
- Develop a plan for tracking segregation-like placements, called “restrictive confinement” placements, based on conditions of confinement
- Develop and fully implement a system for accurately identifying prisoners with mental health disabilities, using alerts that are verified by mental health professionals
- Formalize timelines for:
- Mental health screening – 96 hours after admission
- Mental health reassessment – at least every six months
- Referrals – within 24 hours of completing the screening
- Putting treatment plans in place after appointments with doctors – within 48 hours of the appointment with the assessing physician or psychiatrist
- Collect human rights data to provide annual public reporting on the use of both segregation and restrictive confinement. The data will be disaggregated by sex/gender and mental health disability, and released in a way that allows for meaningful analysis of how segregation and restrictive confinement are used on and affect individuals based on mental health disability and sex/gender
- Retain an independent expert to assist with implementing the settlement, and an independent reviewer to publicly report on Ontario’s compliance with the terms of the settlement.
All of these commitments include specific timelines for compliance. The HRTO remains seized of this matter, which means that the Tribunal can hear disputes that arise as the Order is implemented by the government.
BREAKING: We've obtained a Tribunal Consent Order to keep people with #mentalhealth disabilities out of segregation. Our news release is online. Read and share: https://t.co/Ob0tElemyk #EndSegregation pic.twitter.com/hlGImZPzze
— The OHRC (@OntHumanRights) January 18, 2018