Submission of the OHRC to the Ministry of Community Safety and Correctional Services Provincial Segregation Review

Executive summary

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to make a submission to the Ministry of Community Safety and Correctional Services’ (MCSCS) review of the use of segregation in its correctional facilities.

The OHRC is concerned that segregation is being used in a manner that violates prisoners’ rights under Ontario’s Human Rights Code. As a result, the OHRC is calling upon MCSCS to end this practice and, in the meantime implement interim measures, including strict time limits and external oversight, to reduce the harm of segregation on vulnerable prisoners.

About the Human Rights Code and Ontario Human Rights Commission

Ontario’s Human Rights Code is a provincial law that protects people from discrimination because of protected grounds including race, creed, sex, sexual orientation, gender identity, and disability. Discrimination can occur in different ways, including when people are treated differently because of a characteristic protected by the Code, or when practices or policies appear neutral but have harmful effects for certain groups.

The OHRC is a provincial statutory agency responsible for advancing the Code and preventing systemic discrimination in Ontario. The OHRC is working to address discrimination in Ontario’s correctional system. In 2013, the OHRC intervened as a full party in Jahn v. Ministry of Community Safety and Correctional Services, a human rights case brought by Christina Jahn, who alleged that she was held in segregation for over 200 days because of having mental health disabilities. The parties agreed to a major settlement agreement requiring MCSCS to take steps to improve its treatment of prisoners with mental health disabilities. The settlement includes mental health screening for all prisoners when they are admitted and prohibiting segregation for prisoners with mental health disabilities barring undue hardship. The settlement implementation is ongoing, and the OHRC recommends that the settlement efforts be coordinated with the MCSCS’ Provincial Segregation Review.

What is segregation?

The OHRC uses the term segregation (also known as solitary confinement) to describe the physical and social isolation of a prisoner, with high surveillance and minimal stimulation, for up to 23 hours per day.

The federal Office of the Correctional Investigator has described segregation as the “most austere and depriving form of incarceration that the state can legally administer in Canada”.^[1]

Some prisoners are officially placed in disciplinary or administrative segregation. However the OHRC believes other prisoners are put in the same types of units and under the same conditions as those in segregation, but that other terms, such as “protective custody” and “special needs units” are being used to categorize the placements. The OHRC’s comments on segregation apply to the range of situations – disciplinary, administrative and otherwise – that can result in a prisoner being placed in segregation or comparable circumstances. What matters is the lived experience on the prisoner, not the label applied to the practice by correctional authorities.

How is segregation violating prisoners’ rights under the Human Rights Code?

We believe the current use of segregation in Ontario’s correctional facilities may be violating prisoners’ rights under the Code. In particular, the OHRC is concerned that segregation is disproportionately used on, and has particularly harmful effects for, Code-protected groups such as Black and Indigenous prisoners, prisoners with mental health disabilities, and women. Racialized prisoners and those with mental health disabilities are already over-represented in the prison population, which many have attributed to systemic discrimination within the criminal justice system.^[2]

There is data indicating that segregation is overused on certain racialized groups such as Black and Indigenous prisoners. The Commission on Systemic Racism in the Ontario Criminal Justice System reported racial disparities in the application of institutional discipline, including disciplinary segregation, in Ontario’s correctional facilities.^[3] Recent data from the federal Office of the Correctional Investigator also found that “Black inmates are consistently over-represented in administrative segregation, particularly involuntary and disciplinary placements” and that “Aboriginal inmates continue to have the longest average stay in segregation compared to any other group.”^[4]

There are many people with mental health disabilities in Ontario’s prisons. We are concerned that a lack of institutional housing options, appropriate staffing and prejudice towards people with disabilities, has led to an overreliance on segregation as a means to manage people with mental health disabilities. Segregation is especially harmful for this group as it can make mental health conditions much worse. The United Nations Special Rapporteur on Torture has concluded that solitary confinement “of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment” and called for a ban on solitary confinement for people with mental health disabilities.^[5]

Women prisoners are also particularly affected by the use of segregation. While more women prisoners are identified as having mental health disabilities than men prisoners, access to mental health services is more limited for women, making them vulnerable to being placed in segregation. Federal corrections data  reveals a disproportionate use of segregation on women with mental health disabilities.^[6] Segregation has also been shown to have a distinctly adverse effect on women with mental health disabilities, as they have often been victims of violence and coercion, and are re-traumatized when placed in segregation.^[7]

The OHRC’s Recommendations

Given the extent and gravity of the negative impact of segregation on groups protected by the Code, the OHRC calls on MCSCS to eliminate the use of this practice. If MCSCS continues to use segregation, even in the interim, protections – including strict time limits and external oversight – must be put into place to reduce the discriminatory application of this practice and its harm on Code protected groups. Failure to take such steps would be of serious concern to the OHRC.

The OHRC recommends that MCSCS do the following in order to eliminate the use of segregation, and in the interim, the negative effects of this practice on Code-protected groups:

Recommendations 

1. Publicly commit to eliminating the use of segregation;
2. Immediately implement strict restrictions on the ongoing use of segregation;
3. Continue to implement the terms of the Jahn v. MCSCS settlement, including prohibiting the use of segregation for prisoners with mental health disabilities;
4. Ensure that all prisoners being housed in conditions comparable to segregation, but categorized differently, benefit from the same rights and protections available to those officially placed in segregation;
5. 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;
6. 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;
7. Make segregation placement decisions and healthcare assessments subject to external and independent review and oversight, including judicial review;
8. Ensure all prisoners and their legal representatives are given relevant information about and a genuine opportunity to challenge both the nature of and justification for segregation placements;
9. Implement a system to collect and analyze human rights-based data on the use of segregation and its effects on Code-protected groups; and                       
10. Provide stakeholders and experts with an opportunity to review and publicly comment on any proposed changes to segregation practices and how they will be implemented.