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Ending cruel and inhuman treatment in corrections

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Since 2013, the OHRC has been calling on the government to severely limit the use of solitary confinement in correctional facilities. We had repeatedly raised concerns about the use of segregation on prisoners with disabilities, women, and Black and Indigenous prisoners.

For example, we intervened in the case of Christina Jahn, a woman with mental health disabilities and cancer. She filed a human rights complaint alleging that she was held in segregation for more than 200 days at the Ottawa-Carleton Detention Centre because of mental health disability and gender.

In 2013, we reached a settlement with Ontario’s Ministry of Community Safety and Correctional Services (MCSCS) to improve the treatment of prisoners with mental health disabilities in Ontario’s correctional facilities. However, the OHRC continues to have serious concerns that the terms of settlement have not been met and the over-reliance on segregation continues to violate the right of prisoners to be free from discrimination under the Human Rights Code.

That’s why we made it a priority to visit prisons across the province and to meet with prisoners kept in solitary confinement. In 2016-2017, we toured, met with management, and spoke with prisoners at the:

  • Ottawa Carleton Detention Centre
  • Brockville Jail
  • St. Lawrence Valley Correctional and Treatment Centre (Brockville)
  • Thunder Bay Jail
  • Thunder Bay Correctional Centre
  • North Bay Jail
  • Kenora Jail.

The OHRC conducted a follow up-meeting with Smokey Thomas, President of the Ontario Public Service Employees Union (OPSEU).

We wrote letters to the MCSCS outlining our observations, including that:

  • There is a major need for mental health services that are responsive to the specific needs of various Code protected groups, particularly women, Indigenous and racialized prisoners
  • Infrastructure continues to be a nearly insurmountable barrier to limiting the use of segregation
  • Over-crowding is a major and ongoing problem, and the shift towards a predominantly remand and the increasing use of intermittent sentences are creating instability in the prison environment
  • Health-care resources, including psychiatric treatment, therapeutic support and targeted programming, are inadequate to meet the complex needs of the prison population
  • There is insufficient culturally-relevant support for Indigenous prisoners, especially in jails where they comprise the majority of the population.

As changes are implemented in Ontario’s correctional system, we will continue to monitor progress.

Data confirms alarming overuse of solitary confinement

In a 2016 submission to MCSCS’s review of Ontario’s use of segregation, we made several recommendations, including to:

  • End segregation, and taking interim steps, such as external oversight and strict time limits, to reduce the harm of the practice
  • Develop and implement meaningful alternatives to segregation, consistent with least restraint practices and MCSCS’ duty to accommodate prisoners’ Code-related needs to the point of undue hardship
  • Adjust staffing models, and staff hiring, screening and training to ensure that staff with appropriate attitudes and behavioural skills are working with vulnerable prisoner populations
  • Implement a system to collect and analyze human rights-based data on the use of segregation and its effects on Code-protected groups.

Following this submission, we asked MCSCS to provide disaggregated human rights-based data on its use of segregation. We reported our findings in a second submission to MCSCS in October 2016.

The statistics revealed alarming and systemic overuse of segregation. Over a three-month period, about 19% of prisoners (4,178 people) were placed in segregation at least once. Of the segregation placements during this time, roughly 1,383 were for 15 days or more. According to United Nations’ standards, segregation placements longer than 15 days can be considered “torture or other cruel, inhuman or degrading treatment or punishment” and should be prohibited.

The OHRC continues to be extremely concerned about the disproportionate use of and harm caused by segregation for prisoners with mental health disabilities, and MCSCS’ compliance with its obligations under the Jahn v. Ministry of Community Safety and Correctional Services settlement. As part of the settlement, MCSCS is prohibited from using segregation for prisoners with mental illness to the point of undue hardship. However, the statistics show that 38.2% of the prisoners (1,594 people) who were placed in segregation had a “mental health alert” on their file.

Meeting Adam Capay

Mr. Capay’s situation became public after a prison guard tipped off Renu Mandhane, the head of the province’s human rights commission, when she was visiting the jail earlier this month. Ms. Mandhane found Mr. Capay alone at the end of a range on a windowless floor. After 1,500 days in solitary, she later told reporters, he suffered from memory loss and difficulty speaking. Because of the continuous artificial light, he could not tell day from night.

– @BrownBarrie, Patrick Brown, The Globe and Mail, November 21, 2016

 “I believe that being a human rights Chief Commissioner, is ultimately about making sure that the voice of vulnerable and marginalized people is heard at decision-making tables. When these voices are heard loud and clear, we can change government policies, we can change organizational practices, and we can change our society for the better.”

– OHRC Chief Commissioner Mandhane, speaking at the Forum of Canadian Ombudsman (FCO) and Association of College and University Ombudspersons Conference, Spring 2017

“The use of solitary confinement can have a negative impact on a person’s health and can worsen pre-existing conditions, and it can be especially detrimental for youth and prisoners who suffer from mental illness.”

– Ruth Martin, Chair, Prison Health Program Committee, College of Family Physicians of Canada

We’re seeing results…

Since the OHRC released the data on segregation and exposed Adam Capay’s long-term pre-trial detention in solitary confinement, we have seen significant, measurable changes. Here are some of the details:

  • $55 million in new funding in the criminal justice system
  • Appointment of Howard Sapers as Independent Advisor on Corrections (with specific mandate to ensure compliance with the Jahn settlement)
  • Hiring of 239 additional staff to support prisoners including correctional officers, nurses, mental health nurses, social workers, recreational staff, psychologists, institutional managers
  • Commitments to reduce the number of people and time spent in segregation, including limiting disciplinary segregation to 15 consecutive days
  • Training for detention centre staff on mental health challenges and seclusion protocols
  • Pilot programs in Toronto and Hamilton to provide psychiatric beds to acutely ill prisoners at facilities
  • Review of current data collection practices.

New facility will open doors to mental health services

In November 2016, the Government of Ontario announced the creation of the first dedicated mental health unit in Ontario for female inmates. This announcement flows from its commitments in the Jahn v. MCSCS settlement with the OHRC on the use of segregation and treatment of prisoners, especially women with mental health disabilities.

The unit, expected to open in early 2018, will be part of a new 192-bed adult female detention centre on the site of the Roy McMurtry Youth Centre (RMYC) in Brampton. With capacity for 32 inmates, the unit will meet the specific, often complex needs of female inmates with mental health issues.

Increasing awareness leads to protecting rights

Prisoners in solitary confinement can often be “out of sight, out of mind” – which means the human rights issues they face do not usually gain the public’s understanding or support. But the extensive media coverage of the Adam Capay case and other segregation issues has helped to increase both awareness and outrage.

Increased awareness about these issues is reflected in the number of complaints received by the Ombudsman on Ontario since the OHRC made its first submission to MCSCS’ Provincial Segregation Review in January 2016, and called for a ban on solitary confinement for the first time. The Ombudsman’s recent Out of Oversight report on segregation states: “…Since then, we have continued to track segregation-related complaints. After witnessing an alarming increase in the number of these complaints and examining Adam Capay’s situation, it was clear to me that serious systemic concerns persisted.”

OHRC calls for reforms to immigration detention

The OHRC’s focus on corrections extended beyond solitary confinement. In April 2016, we expressed concern about detention of non-citizens in Ontario jails under the federal Immigration and Refugee Protection Act (immigration detainees).

We know that immigration detention is widespread, with thousands of non-citizens being detained in Ontario jails each year. Immigration detainees are a particularly vulnerable group who often identify on intersecting Code-protected grounds such as race, place of origin, colour, ethnic origin and citizenship. While immigration detainees held in Ontario jails are entitled to protection under the Human Rights Code, we are concerned that the services provided to them are not consistent with the Ministry of Community Safety and Correctional Services’ (MCSCS) obligations under the Code.

While calling for reform, in the interim we voiced our support for a series of recommendations from a University of Toronto report that have also been endorsed by many stakeholders.

These recommendations to MCSCS include:

  • Ensure immigration detainees are held in the least restrictive setting consistent with management of a non-criminal population and protection of the public, staff members, and other prisoners, including in residential-treatment facilities if needed
  • Ensure consistent and meaningful access to adequate in-person, health care (including mental health care), legal counsel, community supports, and spiritual and family supports
  • Ensure that provincial legal aid programs are fully accessible to immigration detainees at all stages of the process, regardless of the length of detention, and that funding is sufficient to pay for independent mental health assessments.

Seeing results

In August 2016, federal Public Safety Minister Ralph Goodale made a commitment to reform the immigration detention system so that detention is used only as a last resort. The government's reform objectives include:

  • Increasing alternatives to detention
  • Reducing the use of provincial jails for immigration detention
  • Avoiding the detention of minors in the facilities as much as possible
  • Improving physical and mental health care for detainees.

(Source: CBC, August 15, 2016)

Organizational change plan must reflect emerging issues

The human rights organizational change project with MCSCS continued into its final year. This project arose out of the settlement in McKinnon v. MCSCS. The resulting Human Rights Plan includes 23 initiatives. MCSCS plans to continue this work until 2021, though the OHRC’s involvement will end in August 2017.

Unfortunately, MCSCS has not made response to recommendations related to solitary confinement central to the project. As the project continues beyond the OHRC’s involvement, it will be important to address all human rights issues, whether related to employment or correctional services, within the Human Rights Plan. It is also essential to put in place an effective approach to evaluate, monitor and assess the impact the entire project.

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