Supplementary Submission of the Ontario Human Rights Commission to the
Ministry of Community Safety and Correctional Services’ Provincial Segregation Review
Introduction and background
In March 2015, the Ministry of Community Safety and Correctional Services (MCSCS) announced that it would be conducting a comprehensive review of the use of segregation in its correctional facilities. The Premier’s recent mandate letter to MCSCS also identified addressing segregation as a key priority. We are pleased that the government is showing proactive leadership on this important issue. Indeed, for over five years, the Ontario Human Rights Commission (OHRC) has been engaged in sustained efforts to make a human rights perspective central to discussions about correctional transformation.
Segregation, also known as solitary confinement, refers to the physical and social isolation of a prisoner, with high surveillance and minimal stimulation, for up to 23 hours per day. It has been described as the “most austere and depriving form of incarceration” legally administered in Canada. According to United Nations’ standards, segregation in excess of 15 days can constitute “torture or cruel, inhuman or degrading treatment or punishment” and should be prohibited.
In January 2016, the OHRC provided MCSCS with written submissions to inform its Provincial Segregation Review, which included a series of long-term and interim recommendations aimed at addressing MCSCS’ use of segregation, and protecting prisoners’ Human Rights Code rights. The Executive Summary of this submission, including the full set of the OHRC’s recommendations, is publicly available and attached as Appendix D.
Following the January 2016 submission to MCSCS’ Segregation Review, on March 11, 2016, the OHRC requested that MCSCS provide disaggregated human-rights based data on how segregation was being used in Ontario’s correctional facilities. On August 23, 2016, MCSCS provided the OHRC with statistics on its use of segregation from October to December 2015. This document, “Segregation Statistics: October – December 2015” is attached as Appendix A. On September 14, 2016, MCSCS provided the OHRC with a technical briefing regarding the segregation statistics. The presentation delivered during the technical briefing meeting is attached as Appendix B.
Having reviewed the statistical information provided by MCSCS, the OHRC now makes the following supplementary submission to inform the government’s ongoing review of segregation.
The statistics provided by MCSCS for the three-month time period of October to December 2015 reveal alarming use of segregation in Ontario’s correctional facilities. On any given day, 6-8% of the prison population, or about 477-636 people, are segregated. Over the 3-month period, 19% of the prisoners in Ontario’s facilities – 4,178 people – were in segregation at one point or another. Of those, 38.2%, or 1,594 people, had a mental health alert on their file. Roughly 1,383 of the segregation placements were for 15 days or longer.
The statistics reveal systemic overuse of segregation, and support the OHRC’s position that prisoners’ rights under the Code are being violated. Moreover, the statistics raise concerns that MCSCS is not complying with its obligations under the Jahn v Ministry of Community Safety and Correctional Services (Jahn v MCSCS) settlement agreement dated September 24, 2013.
Given these shocking numbers, and the extent and gravity of the negative impact of segregation on vulnerable Code-protected groups such as people with mental health disabilities, the OHRC again calls on the government to eliminate the use of this practice. To the extent that segregation continues to be used at all in MCSCS’ facilities, the statistics make the need for strict time limits and external oversight indisputable. The OHRC urges the government to act immediately on all the recommendations set out in detail in the original January 2016 submission.
The statistics also underscore how critical it is for the government to collect and publicly release human rights-based disaggregated data that sheds light on what is occurring behind the closed doors of Ontario’s correctional facilities. Neglecting to collect appropriate data – which when collected shows gross reliance on segregation – must not serve as a way to claim lack of awareness regarding the extent of this systemic issue—or accountability for it. To that end, the OHRC calls on the government to collect and publicly release data on its use of segregation, disaggregated based on Code-protected grounds, for the 2016-2017 fiscal year, and on an annual basis going forward.
Systemic reliance on and overuse of segregation
The statistics shared by MCSCS reveal that gross reliance on and overuse of segregation are systemic issues in Ontario’s correctional facilities.
Systemic overuse of segregation
MCSCS provided the OHRC with statistics about its segregation use from October to December 2015. On any given day, 6-8% of the total prison population, or about 477-636 people, were in segregation. Over the course of the three-month period, 21,712 people were in MCSCS custody; of them, 19.2% or 4,178 people, were in segregation at least one time. Almost half of the 4,178 prisoners who were placed in segregation – 1,889 individuals – were segregated multiple times.
These statistics show that there is systemic overuse of segregation in Ontario’s correctional facilities. The numbers are very similar to historical trends on the use of segregation in Canada’s federal corrections system, which has long been criticized for its overuse of segregation. However, since April 2014, the use of administrative segregation in the federal corrections system has dropped by approximately 40%, making Ontario’s segregation use now much higher in comparison. Further, many jurisdictions which have tackled the issue seriously, including some US states, have also experienced major drops in their segregation rates.
It is notable that, MCSCS’ St. Lawrence Valley Correctional and Treatment Centre (SLVCTC) has one of the lowest segregation rates in the province, even though it only admits prisoners with the most serious mental health disabilities. When the OHRC Chief Commissioner visited the SLVCTC in June 2016, management commented that the segregation rates were so low compared to other MCSCS facilities, despite the high needs prisoner population, because of the facility’s single-cell accommodation and its myriad of available treatment options.
Excessive duration of segregation placements
The statistics provided by MCSCS also reveal that a significant number of prisoners were subjected to segregation placements longer than 15 days, which according to United Nations’ standards should be prohibited.
Table 1, below, provides a breakdown of the lengths of the 6,067 segregation placements that occurred from October to December 2015.
Table 1: Duration of October - December 2015 Segregation Placements
|Duration of Segregation Placement||% of Placements||Approximate # of Placements|
|7 days or less||61.8%||3,749|
|Over 1 year||0.2%||12|
It is also important to note that these statistics appear to reflect the duration of the 6,067 discrete segregation placements – not the overall amounts of time individual prisoners have been in continuous segregation. Each segregation placement was considered a unique case; if an inmate was moved in and out of segregation, or transferred from segregation in one institution to segregation in another institution, it seems that this was counted as multiple segregation placements, with the clock starting over.
This means that, overall, prisoners are being held in segregation for longer, continuous amounts of time than revealed by MCSCS’ statistics. For example, while touring the Thunder Bay Jail on October 7, 2016, the OHRC Chief Commissioner met a prisoner who seems to have been held in continuous segregation for four years – a duration not reflected in the statistics. This may be because the prisoner was transferred during this time period, resulting in the continuous segregation actually being counted as multiple placements, with the ‘clock’ starting over upon each transfer. Alternatively, it may indicate that this prisoner’s segregation placement information was omitted from the statistical information provided to the OHRC. The OHRC is following up to try and obtain further information about the circumstances of this prisoner. The OHRC has also asked MCSCS to confirm whether there are any other cases where successive segregation placements have resulted in prisoners effectively being held in continuous segregation beyond 939 days, or other cases of segregation that are not reflected in the statistics provided.
The reasons for segregation are overwhelmingly administrative – not disciplinary
MCSCS’ statistics reveal that, overwhelmingly, prisoners are being placed in administrative, rather than disciplinary segregation. This is troubling, as administrative segregation is not governed by the same procedural safeguards as disciplinary segregation, and its extensive use shows that segregation is being used by MCSCS as a routine management strategy.
Legal authority for placing a prisoner segregation
The legal authority for placing a prisoner in segregation is set out in Regulation 778, under the Ministry of Correctional Services Act. Segregation placements fall into two categories: disciplinary segregation (also known as close confinement), and administrative segregation.
Disciplinary segregation is punitive, and can only occur when a prisoner is found to have conducted a misconduct of a serious nature. Administrative segregation occurs when a prisoner is separated from the general population for reasons generally relating to safety and security. Under Regulation 778, administrative segregation can only be used when:
- a prisoner is in need of protection;
- to protect the security of an institution or the safety of other prisoners;
- a prisoner is alleged to have committed a misconduct of a serious nature; or
- a prisoner requests to be placed in segregation.
MCSCS’ reasons for the October – December 2015 segregation placements
Table 2, below, breaks down MCSCS’ reasons for the 6,067 segregation placements from October to December 2015.
Table 2: MCSCS Reasons for October - December 2015 Segregation Placements
|MCSCS Reason for Placement||% of Placements||# of Placements|
Multiple placement reasons
Unknown placement reason
The OHRC notes that MCSCS’ placement reasons do not clearly correspond with the legally permissible reasons for segregation set out in Regulation 778. For example, it is questionable whether the Regulation is meant to permit placing prisoners in segregation for medical reasons. It is also concerning that MCSCS included “multiple placement reasons” as the basis for 21.6% of its segregation placements, without providing any further information. Finally, it is particularly worrisome that 370 segregation placements occurred for “unknown” reasons.
We also note that almost 300 of the segregation placements were made based on prisoner requests. That any prisoners, likely motivated by fear for their personal safety in the general population, would request being housed in conditions as harsh as segregation suggests few meaningful alternatives to segregation or mental health treatment options are actually being made available.
Extensive use of administrative segregation is troubling
The predominance of administrative segregation is troubling, as administrative segregation is not governed by the same due process safeguards as disciplinary segregation. Before disciplinary segregation can be used, Regulation 778 requires that prisoners must be given notice of any misconduct allegations, an opportunity to dispute the allegations (including presenting arguments, explanations, and questioning witnesses), and be provided with the reasons for the misconduct decision and disciplinary measures imposed. Prisoners can request to have a misconduct decision reviewed by the Minister. Importantly, Regulation 778 also prohibits the use of disciplinary segregation in excess of 30 days.
In contrast, Regulation 778 imposes no time limits for administrative segregation, and no equivalent due process requirements. For administrative segregation, the Regulation does not require providing prisoners with an opportunity to dispute placement decisions, reasons, or the option of requesting placement decisions be reviewed by the Minister. Although not required by the Regulation, the OHRC does note that MCSCS policies state that prisoners in administrative segregation should be able to make submissions regarding their segregations placements to a superintendent at any time.
The Regulation does, however, impose some review and reporting requirements. A superintendent must review administrative segregation placement decisions at least once every 5 days, and for any prisoner in segregation for 30 continuous days, report to the Minister on the reasons for continued segregation. On top of this, the Jahn v MCSCS settlement imposes additional reporting requirements. Jahn requires that the reports to the Minister about prisoners who have been in segregation for 30 continuous days indicate whether the prisoner has a mental illness, and what alternatives to segregation were considered and rejected, including any treatment plans in place that may assist the prisoner in leaving segregation. The Jahn settlement also requires notifying the Assistant Deputy Minister, Institutional Services, when any prisoner has been in segregation for a period in excess of 60 aggregate days in one year, and whether that prisoner has a mental illness.
The extensive use of administrative segregation strongly suggests that segregation is not being used as a last resort, but rather, as a routine management strategy across Ontario’s correctional facilities. It cannot be acceptable for the most restrictive and depriving form of incarceration legally administered in Canada – one which is otherwise imposed as a punishment – to be the default approach in situations where prisoners are sick or in need of protection.
Ontario’s segregation practices must change
The statistics provided by MCSCS demonstrate that the use of segregation is an endemic issue in Ontario’s correctional facilities, and that drastic action is warranted.
The shocking, systemic reliance on the practice as a default management strategy supports the OHRC’s recommendation that MCSCS publicly commit to eliminating the use of segregation. So long as segregation remains an option in Ontario’s correctional system, the OHRC believes there will not be a sufficient incentive to develop and support alternatives, and segregation will continue to be overused.
Further, the statistics also highlight that it is imperative for Ontario to act on the OHRC’s recommendations to immediately implement strict time limits on the ongoing use of segregation, and make segregation placement decisions subject to external and independent review and oversight, including judicial review. The fact that, in just a three-month period, over 4,178 people were in segregation, and that almost 1,400 of these placements were long enough that they could amount to “torture or other cruel, inhuman or degrading treatment or punishment” based on United Nations’ standards, signals that internal procedural safeguards are wholly insufficient to address a problem of this magnitude.
These OHRC recommendations, along with others, are set out in more detail in the OHRC’s original January 2016 submission to MCSCS’ Provincial Segregation Review. The Executive Summary of the submission is publicly available and attached as Appendix D.
Concerns with Human Rights Code compliance
The statistics provided by MCSCS also support the OHRC’s position that segregation is being used in a manner that violates prisoners’ rights under the Code, and strongly suggest that MCSCS is not meeting its legal obligations under the Jahn v MCSCS settlement agreement.
Jahn v MCSCS Settlement Agreement
In 2013, the OHRC intervened as a full party in Jahn v MCSCS, a Human Rights Tribunal of Ontario (HRTO) application concerning a woman, Christina Jahn, with mental health disabilities and cancer, who was placed in segregation for over 200 days at the Ottawa-Carleton Detention Centre.
In September 2013, the application resulted in a settlement agreement whereby MCSCS acknowledged that segregation can have an adverse impact on prisoners with mental illness, and agreed to take major steps to address this issue. The agreement requires MCSCS, among other things, to conduct mandatory mental health screening for all prisoners, and prohibit the use of segregation for any prisoner with mental illness unless it can demonstrate and document that all alternatives have been considered and rejected as amounting to undue hardship.
The full set of public interest remedies from the Jahn v MCSCS settlement is publicly available and attached as Appendix E.
Prisoners with mental health alerts are consistently placed in segregation
According to MCSCS’ statistics, of the 4,178 prisoners placed in segregation from October to December 2015, 38.2% or 1,594 individuals had a “mental health alert” on their file.
MCSCS provided the following explanation regarding mental health alerts:
Mental health alerts are applied to inmates because they represent possible management concerns. These can be based on confirmed information or observations made by any supervising Ministry staff; the presence of a mental health alert does not indicate a confirmed diagnosis of mental illness. To be included in the mental health alert category, one of the following alerts must be present: the observation of bizarre or abnormal behavior, developmental delay, current psychiatric treatment, psychiatric prescription drugs, or previous psychiatric assessment/treatment.
Based on this, the OHRC understands that the group of prisoners with mental health alerts may be under-inclusive of those with mental health disabilities. This is because having a mental health disability may not result in a prisoner presenting “possible management concerns”. When meeting with the OHRC, MCSCS acknowledged that there could be prisoners with mental health disabilities, such as depression or anxiety, who do not have mental health alerts on their file because they do not present management concerns. Indeed, prisoners with mental health disabilities, but no mental health alerts on their files, could actually even include those who have developed mental health disabilities as a result of being placed in segregation.
Disproportionate use of and harm caused by segregation for prisoners with mental health disabilities
Overall, it is troubling that 38.2% of the prisoners who were in segregation had mental health alerts, as the OHRC expects there is likely considerable overlap between those with mental health alerts and disabilities.
As the OHRC described in detail in its January 2016 submission to MCSCS’ Provincial Segregation Review, it is concerned that segregation is being disproportionately used on – and having particularly harmful effects for – prisoners with mental health disabilities, in violation of the Code.
The damaging effect of segregation on people with mental health disabilities has repeatedly been recognized. The United Nations Special Rapporteur on Torture has determined that segregation “of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment”. Likewise, the Mandela Rules state that segregation for prisoners with mental or physical disabilities when their conditions would be exacerbated by the practice should be prohibited.
MCSCS must be aware of prisoners with mental health disabilities in order to meet Code and Jahn v MCSCS settlement obligations
In order to meet its Code and Jahn v MCSCS settlement obligations, as a first and necessary step, MCSCS must be able to identify those prisoners in its care who have a mental health disability. This would allow MCSCS to accommodate those prisoners and tailor programming to meet their unique needs.
The fact that MCSCS was only able to identify the segregated prisoners that had a mental health alert on their file based on possible management concerns, rather than those with mental health disabilities, indicates that MCSCS is not meeting its obligations. If MCSCS is not identifying those individuals in the prison population that have mental health disabilities, the OHRC believes that it simply cannot demonstrate that it is taking the steps required to protect the rights of these prisoners.
According to the Jahn v MCSCS settlement terms, MCSCS is prohibited from placing any prisoner with mental illness in segregation unless all alternatives to segregation have been considered and rejected as amounting to undue hardship. The settlement also requires documentation of all alternatives that have been considered and rejected as amounting to undue hardship.
During the June 14, 2016 technical briefing meeting, the OHRC asked whether these requirements were being met. In response, MCSCS’ legal director stated that alternatives to segregation to the point of undue hardship were being considered and documented for each prisoner in accordance with the Jahn settlement terms.
Despite such assurances, if MCSCS is not even able to identify those prisoners that have mental health disabilities out of those who have already been placed in segregation, the OHRC questions how it could be possible that all alternatives were considered and rejected as amounting to undue hardship before any prisoners with mental health disabilities were segregated.
Considering alternatives to segregation to the point of undue hardship
Finally, even if MCSCS had appropriately identified all prisoners with mental health disabilities, the high percentage of prisoners in segregation with mental health alerts –almost 40% – suggests that MCSCS is not actually meeting its Jahn v MCSCS settlement commitment to consider all alternatives to the point of undue hardship before resorting to segregation.
Undue hardship is an extremely high threshold. In assessing whether an alternative to segregation amounts to undue hardship, the permissible considerations are costs (including outside sources of funding), and health and safety requirements. With respect to costs, it is the OHRC’s position that given MCSCS’ size and access to resources, it would be very difficult for MCSCS to establish undue hardship on this basis.
With respect to health and safety requirements, MCSCS must be able to prove, using real, direct and objective evidence, that an alternative to segregation would result in undue risk. Importantly, before assessing whether a risk would be undue, MCSCS must also have taken steps to mitigate or reduce the risk. Finally, in the OHRC’s view, considering alternatives to the point of undue hardship requires MCSCS to also be assessing what alternatives it should be developing, such as additional single-cell accommodation and community-based secure mental health care treatment facilities. It is not sufficient for MCSCS to assert undue hardship while maintaining a status quo that fails to support any alternatives beyond segregation.
In sum, if MCSCS were assessing alternatives to segregation to the point of undue hardship in line with the standards described above, it is hard to believe that so many prisoners with mental health alerts would have been placed in segregation. While the OHRC acknowledges that MCSCS has implemented the Jahn v MCSCS settlement requirements at a policy level, the statistics suggest that they are not being operationalized – at great cost to the prisoners whose human rights are being violated.
To that end, the OHRC again recommends that MCSCS implement the terms of the Jahn v MCSCS settlement agreement, including prohibiting the use of segregation for prisoners with mental health disabilities.
Necessity of human rights-based data collection
MCSCS’ statistics have shed light on Ontario’s high segregation rates, and the fact that the overuse of and reliance on the practice is a systemic problem in our correctional system. A critical issue with the statistics provided by MCSCS, however, is that the information regarding the use of segregation on Code-protected groups is sparse, and limits meaningful analysis.
Insufficient information on segregation of Code-protected prisoners
In making its request, the OHRC asked that MCSCS provide data regarding segregation placements, rationale and duration, all disaggregated based on the Code-protected grounds of sex, race, ancestry (Indigenous status), and mental health disability.
While MCSCS did provide some limited statistics regarding the race, sex and mental health alerts of the overall group of prisoners placed in segregation, no disaggregated statistics were provided relating to the breakdown of these groups with respect to segregation duration or rationale. In its response to the OHRC’s request, MCSCS stated that it “does not collect most of the requested data on disaggregated code-related [sic] grounds”.
While the OHRC remains concerned about the possible disproportionate impact of segregation on Black, Indigenous, other racialized prisoners, and women, MCSCS did not provide baseline data about the representation of these Code-protected groups in the overall prison population, which is necessary to assess whether segregation is used disproportionately on any of them.
MCSCS must collect data on how segregation affects Code-protected prisoners
MCSCS must take steps to gather disaggregated, human rights-based data on its use of segregation that shows how this practice is affecting Code-protected groups.
First, as described earlier in this submission, gathering such information is essential for MCSCS to assess whether it is meeting its Code and Jahn v MCSCS settlement obligations.
Second, given the extent of systemic evidence about the overuse and adverse effects of segregation on Code-protected groups, human rights-based data collection is clearly warranted. As the OHRC describes in its Policy and Guidelines on Racism and Racial Discrimination, data collection is warranted in situations where there are: persistent allegations or complaints of discrimination or systemic barriers; a widespread public perception of discrimination or systemic barriers; or evidence from other organizations or jurisdictions that a substantially similar policy, program or practice has had a disproportionate effect on Code-protected groups. All of these circumstances are present with respect to the use of segregation in Ontario’s correctional facilities.
Third, it is the OHRC's long-held position that in cases where data collection is clearly warranted, the failure to collect accurate and reliable data may foreclose a respondent from making a credible defence that it did not discriminate.
Fourth, not only is such data collection vital for identifying the nature and extent of any discrimination in MCSCS’ use of segregation, it is also needed to inform how to address problems with segregation use, and monitor the effectiveness of any steps taken to do so. Indeed, it is hard to imagine how MCSCS will conduct an effective review of segregation without understanding who is, in fact, segregated.
In the OHRC’s view, MCSCS should be able to provide data on the following:
- Overall segregation placements, duration and legal rationale;
- Segregation placements, duration and rationale disaggregated based on Code-protected grounds, and broken down by region and facility;
- Prisoners’ aggregate segregation times, disaggregated based on Code-protected grounds, and broken down by region and facility; along with,
- Baseline data regarding the representation of Code-protected groups in the overall prison population, and broken down by region and facility.
The OHRC acknowledges that, with the release of the statistical information, MCSCS made the important commitment of “actively working to improve the way in which it collects segregation related data”. The OHRC asks that MCSCS provide: information about the steps it intends to take in order to improve its segregation data collection; the associated timeline; and an opportunity for stakeholders and experts to provide input and feedback on MCSCS’ data collection practices.
Accordingly, the OHRC restates its recommendation that MCSCS implement a system to collect and analyze human rights-based data on the use of segregation and its effects on Code-protected groups. Moreover, the OHRC calls on the government to collect and publicly release data on its use of segregation, disaggregated based on Code-protected grounds, for the 2016-2017 fiscal year, and on an annual basis going forward.
Finally, while data collection on Ontario’s use of segregation is essential, it is imperative to recognize that data collection is not an end it itself. MCSCS must also be accountable for addressing the significant human rights concerns facing Code-protected prisoners in its correctional facilities. The circumstances revealed by the statistics already available are more than sufficient to trigger the government’s obligation to take immediate steps to address how its use of segregation is violating prisoners’ rights under the Code.
Ministry of Community Safety and Correctional Services, “Segregation Statistics: October-December 2015”.
Refer to PDF
Ministry of Community Safety and Correctional Services, “Segregation – Technical Data Briefing” (14 September 2016). Refer to PDF
Letter from David Orazietti, Minister of Community Safety and Correctional Services, to Renu Mandhane, Chief Commissioner, Ontario Human Rights Commission, received October 4, 2016. Included in PDF
Executive Summary of the January 2016 “Submission of the OHRC to the Ministry of Community Safety and Correctional Services Provincial Segregation Review”, online: <http://www.ohrc.on.ca/en/submission-ohrc-ministry-community-safety-and-correctional-services-provincial-segregation-review>.
Jahn v. Ministry of Community Safety and Correctional Services, Public Interest Remedies (24 September 2013), online: <http://www.ohrc.on.ca/sites/default/files/Jahn%20Schedule%20A_accessible.pdf>.
 Ministry of Community Safety and Correctional Services, News Release, “Statement by Minister Yasir Naqvi on review of segregation policy in Ontario correctional system” (26 March 2015), online: <http://news.ontario.ca/mcscs/en/2015/3/yasir-naqvi-minister-of-community-safety-and-correctional-services-made-the-following-statement-toda.html>.
 Kathleen Wynne, “September 2016 Mandate letter: Community Safety and Correctional Services - Premier's instructions to the Minister on priorities” (23 September 2016), online: <https://www.ontario.ca/page/september-2016-mandate-letter-community-safety-and-correctional-services>.
 Since 2011, the OHRC has dedicated significant resources to working with MCSCS on a ‘Human Rights Project Charter’ aimed at identifying and eliminating discrimination in MCSCS’ employment and service delivery. More recently, MCSCS’ use of segregation has become one of the OHRC’s primary concerns, driving the OHRC to intervene in the Jahn v MCSCS litigation, participate in MCSCS’ ongoing Provincial Segregation Review, and request that MCSCS provide segregation data.
 In the information provided to the OHRC, MCSCS defined segregation as: “An area designated for the placement of inmates who are to be housed separate from the general population (including the separation of an inmate from protective custody, special needs unit(s), etc.). For administrative segregation or close confinement housing, inmates are confined to their cells, limited social interaction, supervised/restricted privileges and programs, etc.” See Ministry of Community Safety and Correctional Services, “Segregation Statistics: October-December 2015”, attached as Appendix A, at 1 [MCSCS, “Segregation Statistics”].
 Office of the Correctional Investigator, News Release, “Office of the Correctional Investigator Releases Administrative Segregation in Federal Corrections: 10 Year Trends - Federal Corrections Overuses Segregation to Manage Inmates” (28 May 2015), online: <http://www.oci-bec.gc.ca/cnt/comm/press/press20150528-eng.aspx>.
 United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules), GA Res 70/175, UNGAOR, 7th Sess, Supp No 106, UN Doc A/Res/70/175, (2015) at Rule 43, online: <https://cdn.penalreform.org/wp-content/uploads/1957/06/ENG.pdf> [Mandela Rules]; Interim Report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment (Juan E. Méndez), UN GAOR, 66th Sess, UN Doc A/66/150 (2011) at paras 76, 88, online: <https://ccrjustice.org/sites/default/files/assets/UN-Special-Rapporteur-Report-on-Solitary.pdf> [UN Special Rapporteur on Torture, “Report on Solitary Confinement”]. The OHRC notes that the Supreme Court of Canada has stated that “prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation”; see R v Hape, 2007 SCC 26, at para 39.
 Ontario Human Rights Commission, “Submission of the OHRC to the Ministry of Community Safety and Correctional Services Provincial Segregation Review”, attached as Appendix D, online: <http://www.ohrc.on.ca/en/submission-ohrc-ministry-community-safety-and-correctional-services-provincial-segregation-review> [OHRC, “January 2016 Submission to MCSCS Segregation Review”].
 The OHRC requested data on the following: “The number of prisoners admitted into segregation in each of Ontario’s jails, the rationale for admission, and the duration of segregation, all disaggregated on the following Code-grounds: sex, race, ancestry (Indigenous status), and mental health disability.” The data was requested pursuant to s.31 (1) of the Human Rights Code, which allows the OHRC to make inquiries it believes are in the public interest and for the purpose of carrying out its functions.
 MCSCS, “Segregation Statistics”, supra note 4.
 Ministry of Community Safety and Correctional Services, “Segregation – Technical Data Briefing” (14 September 2016), attached as Appendix B [MCSCS, “Technical Data Briefing”].
 There was a subsequent meeting between the OHRC Chief Commissioner and the Minister of Community Safety and Correctional Services on September 20, 2016, wherein the OHRC advised that it would be providing supplementary submissions to MCSCS’ Segregation Review and publicly releasing the segregation statistics provided by MCSCS. On October 4, 2016, the Minister of Community Safety and Correctional Services wrote to the OHRC Chief Commissioner stating that he is aware of the concerns regarding the use of segregation in Ontario correctional facilities, and is “committed to improving the use of segregation in Ontario”. The October 4, 2016 letter is attached as Appendix C.
 MCSCS, “Technical Data Briefing”, supra note 10 at 4. MCSCS has stated that 6 – 8% of the average midnight count is in segregation, and that the average midnight count for the 2015/2016 fiscal year is 7,952.
 OHRC, “January 2016 Submission to MCSCS Segregation Review”, supra note 7.
 The Office of the Correctional Investigator receives, analyses and reports on such data with respect to the federal correctional system. There is currently no comparable oversight body for Ontario’s correctional system.
 It is important to note at the outset that MCSCS has stated it experienced challenges with its data collection, and that as a result, its data has limitations and integrity issues. While we acknowledge the data integrity issues described by MCSCS, in the OHRC’s view, they do not affect the statistics significantly enough to detract from the overall trends revealed. Indeed, the statistics show such high rates of segregation that, even factoring in possible data integrity concerns, they would nonetheless point to systemic overuse of segregation in Ontario’s correctional facilities. In the interest of full transparency, all of the documents provided by MCSCS, which include MCSCS’ explanations regarding the problems with its data collection, have been appended to this submission.
 MCSCS, “Technical Data Briefing”, supra note 10 at 4. MCSCS has stated that the average midnight count for the 2015-2016 fiscal year is 7,952 prisoners, and that 6 – 8% of the average midnight count are in segregation.
 MCSCS, “Technical Data Briefing”, ibid; MCSCS, “Segregation Statistics”, supra note 4 at 1.
 MCSCS, “Technical Data Briefing”, ibid at p 6; “Segregation Statistics”, ibid. In both these documents MCSCS states, “Of the 4,178, 1,889 (31.1%) inmates served multiple terms in segregation…” However, 1,889 prisoners are 45.2%, not 31.1%, of 4,178 prisoners.
 Office of the Correctional Investigator, “Annual Report of the Office of the Correctional Investigator 2014-2015” (26 June 2015), online: <http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20142015-eng.aspx#s15>.
 Correctional Service Canada, “Trends in Administrative Segregation 2014 to 2016” (June 2016), online: <http://www.csc-scc.gc.ca/research/005008-rib-16-05-eng.shtml>.
 American Civil Liberties Union, “Briefing Paper: The Dangerous Overuse of Solitary Confinement in the United States” (August 2014), online: <https://www.aclu.org/sites/default/files/assets/stop_solitary_briefing_paper_updated_august_2014.pdf>; Leon Neyfakh, “What Do You Do With the Worst of the Worst?” Slate (3 April 2015), online: <http://www.slate.com/articles/news_and_politics/crime/2015/04/solitary_confinement_in_washington_state_a_surprising_and_effective_reform.html>.
 MCSCS, “Segregation Statistics”, supra note 4 at 1; MCSCS, “Technical Data Briefing”, supra note 10 at 8. In the presentation, MCSCS states that the placement lengths “must be used with caution because of inconsistent reporting of segregation start dates”.
 Mandela Rules, supra note 6. The Mandela Rules use the term “solitary confinement” rather than segregation; UN Special Rapporteur on Torture, “Report on Solitary Confinement”, supra note 6 at paras 76, 87 – 88. While the Special Rapporteur uses the term “solitary confinement” he notes in para 26 of his report that it is also known as “segregation”.
 Mandela Rules, ibid at Rule 44; UN Special Rapporteur on Torture, “Report on Solitary Confinement”, ibid at para 79.
 MCSCS, “Segregation Statistics”, supra note 4 at 1; MCSCS, “Technical Data Briefing”, supra note 10 at 8.
Ministry of Correctional Services Act, RRO 1990, Reg 778 at ss 32, 34, online: <https://www.ontario.ca/laws/regulation/900778#BK12> [Ministry of Correctional Services Act, Regulation 778].
Ibid at s 32 (2).
Ibid at s 34 (1).
 MCSCS, “Segregation Statistics”, supra note 4 at 1; MCSCS, “Technical Data Briefing”, supra note 10 at 10.
 Ministry of Correctional Services Act, Regulation 778, supra note 29, at s 31.
 Ibid at s 33.
Ibid at s 32 (2).
Ministry of Community Safety and Correctional Services, Institutional Services Policy and Procedures Manual, Placement of Special Management Inmates (22 September 2016).
Ministry of Correctional Services Act, Regulation 778, supra note 29, at ss 34(3), 34(5).
 Ontario Human Rights Commission, “Segregation and mental health in Ontario’s prisons: Jahn v Ministry of Community Safety and Correctional Services” at para 6, online: <http://www.ohrc.on.ca/en/segregation-and-mental-health-ontario%E2%80%99s-prisons-jahn-v-ministry-community-safety-and-correctional> [Jahn v. MCSCS Settlement Agreement].
 OHRC, “January 2016 Submission to MCSCS Segregation Review”, supra note 7.
 Jahn v MCSCS Settlement Agreement, supra note 38.
 MCSCS, “Segregation Statistics”, supra note 4 at 1; MCSCS, “Technical Data Briefing”, supra note 10 at 7.
 MCSCS staff stated this during the September 14, 2016 Technical Data Briefing meeting with the OHRC.
 UN Special Rapporteur on Torture, “Report on Solitary Confinement”, supra note 6 at para 78.
 Mandela Rules, supra note 6, at Rule 45.
 Jahn v MCSCS Settlement Agreement, supra note 38, at paras 5, 6.
Human Rights Code, RSO 1990, c H19, ss 11, 17; Ontario Human Rights Commission, Policy on ableism and discrimination based on disability (27 June 2016) at 51, online: <http://www.ohrc.on.ca/sites/default/files/Policy%20on%20ableism%20and%20discrimination%20based%20on%20disability_accessible_2016.pdf>.
 OHRC, Policy on ableism and discrimination based on disability, ibid, at 54.
 MCSCS, “Segregation Statistics”, supra note 4 at 2.
 For detailed information about collecting human rights based data, see the OHRC’s guide, Count me in! Collecting Human Rights Based Data (2009), online: <http://www.ohrc.on.ca/en/count-me-collecting-human-rights-based-data>.
 Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (9 June 2005) at 43 – 44, online: <http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_racism_and_racial_discrimination.pdf>.
 MCSCS, “Segregation Statistics”, supra note 4 at 1.