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“Five years after Ontario vowed to curtail its use of solitary confinement, average inmate stays in segregation cells have grown longer, with one prisoner in Ottawa remaining in isolation for at least 835 days, according to newly released provincial data.

The statistical snapshot shows that solitary confinement, the prison practice of isolating inmates for 22 or more hours a day without meaningful human contact, remains a central component of provincial jail operations. It also raises questions about the commitment of the new government of Progressive Conservative Premier Doug Ford to pending legislation that would severely limit its use.

The most glaring figure comes from the Ottawa-Carleton Detention Centre, where government spreadsheets indicate a Muslim man with mental-health issues, between the ages of 35 and 39, was housed in solitary for at least 835 days. Little more is known about him. United Nations guidelines recommend 15 days as a limit for segregation placements to prevent lasting mental and physical harm. Earlier this year, the previous Liberal government passed legislation that would enshrine those 15-day caps, but it has yet to be proclaimed by the Lieutenant-Governor.” 

– Patrick White, “Length of solitary stays increasing in Ontario prisons, including 835 days for one inmate.The Globe and Mail, November 5, 2018.

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01:56 Matt: I’m noticing that you’re saying segregation, you’re not saying solitary.

02:00 Lisa: So the technical official language in the legislation is segregation. To me, it’s a synonym. Solitary confinement, as we’ve known it in Canada, is synonymous with what is endorsed in the legislation as administrative or disciplinary segregation. And there were many years where Corrections took the position, “Well, we don’t have solitary confinement in Canada, that’s nowhere in our legislation. That’s an American practice, that’s not something we do.” Thankfully, that battle is behind us at this point, and there’s no doubt that this government accepts that we have been doing, what is effectively solitary confinement and that is this practice of keeping people in cells for 23 hours a day and subjecting them to sensory deprivation, social isolation, occupational deprivation, and there’s of course now a large literature on the mental and physical harms that flow from that level of isolation.

02:58 Matt: But I mean… And I guess, again, naive and largely informed by a lifetime spent in pop culture. I’ve always just kind of thought that solitary was for the worst of the worst. It’s how you… It’s where you put the people who are super bad.

03:10 Lisa: It’s a common presumption that anyone who gets thrown in the hole is the worst of the worst. And at this point, what we’re… What is very clear from the empirical evidence is that people with mental health problems are actually vulnerable to being placed in segregation. Why is that? Because they’re the ones who often have a difficult time managing in the general prison population. So general population is quite a demanding environment, socially speaking. You have to be able to navigate complex social arrangements, you have to be able to manage friendships in complex ways, in ways that in ordinary society we’re really not put to challenges like that, you have to manage your relationships with correctional officers and do all of this amid conditions of serious social deprivation.

04:02 Lisa: So people with mental health challenges often don’t do well in the prison context, and so they’re at risk because for correctional officers, they have to somehow manage, manage the prisoner society, and so where people are having difficulties there’s only so many resources and options that correctional officers have, and in recent decades placing someone in a solitary cell, is one way of dealing with the problem. But of course, people with mental health problems are not the worst of the worst, far from it, they’re people who need more meaningful social supports and more meaningful programs and interventions than other inmates. And so this has been one of the real dysfunctions of the use of solitary is that the mentally ill are at risk of being placed there, at more risk than other inmate groups, and the effects of solitary are more severe on them.

04:55 Matt: Then that raises… Just to put a fine point on it. You don’t get sentenced to solitary. When you get sent to prison, the judge doesn’t say, “I’m sentencing you to solitary.” It’s just he sends you to prison. And segregation is an administrative decision.

05:09 Lisa: That’s such an important point, it’s absolutely correct. The sentencing judge has no idea whether the person before them is going to serve their time in solitary or not. And in fact, I think if a sentencing judge were aware of this issue it may actually impact their decision not only whether to sentence you to custody, but what the length of that sentence should be, given that it’s a much more severe form of state punishment. So it’s true, the reasons you get placed in solitary have nothing to do with the offence you’re convicted of. And I do think this gives rise to real problems in terms of the proportionality of punishment in our system. I think the most famous case in Canada, and the case that really activated a national consciousness around this issue is the case of Ashley Smith, and she was of course 19 years old when she died in a segregation cell having been held there for many months and Ashley Smith had committed no remotely serious criminal conduct in the community. When she was placed in juvenile custody, she’d done nothing more than throw crab apples at a postal worker. She had difficulties as a young person, no question, but nothing resembling serious criminal conduct, and yet she was subjected to the most severe form of state punishment in our system.

06:32 Matt: So, and this sounds like… You were alluding to this earlier, it’s… It is an overstressed and in some cases probably not that well-trained system in terms of people making this decision as something they see as a tool in the toolbox and not necessarily understanding how to use it in the most appropriate way.

06:50 Lisa: Well, sure, it’s one of the only tools in the toolbox, and that is… I think this new legislation that the Federal Liberal Party have just tabled. You can see indications in this legislation that we’re gonna listen more to healthcare professionals commenting on whether a segregation placement is appropriate or what’s called these placement in these structured intervention units that the new legislation talks about. And so I think there is a growing recognition that this has been one of the only tools in the toolbox for correctional officers and that we need to move away from it, particularly where it has negative health effects and that we need to invest more in our system to delivering interventions and programs that might assist inmates rather than placing them in segregation and seeing their condition and personality deteriorate.

07:50 Matt: So let’s talk a bit about the new legislation. What’s in it?

07:55 Lisa: Well, the main… It’s interesting, there’s been a couple of… This is now the second draft bill we’ve seen in a year from the liberals, so they’ve taken a couple of different sort of shots at this, and this new bill is really a different approach than what we’ve seen before. Previously over the last couple of years the Liberals have added some procedural protections for those placed in segregation, so some limits on reviews and the timing and so on. Whereas this new bill you’re hearing the Minister of Public Safety, Ralph Goodale, promote this bill by saying that it’s really about ending solitary. And in a significant sense, it does do that.

08:35 Lisa: So, the sections in the prison legislation that allowed administrative segregation, which was sort of the most nefarious practice of segregation, those provisions are repealed under this legislation; would be repealed. So the word segregation will no longer even appear in the legislation, they are replaced with what’s called legislation that allows the use of what’s called “structured intervention units” and the really important change here is that inmates who are placed in these units… No, inmates can still be separated from the general prison population and for the same reasons as before, but now they’ll be entitled to get out of their cells each day for a minimum of four hours, and for two of those four hours it has to be for some sort of meaningful social contact or intervention. So there’s still problems with this new bill and there’s critics who are already asking whether it’s gonna be segregation by a new name or segregation light. But I think it’s significant to really change the sort of culture around just abandoning someone in a cell for 23 hours a day and instead saying every human being in our prison system is entitled to contact with other people and to some form of programming and to be out of their cells for at least a few hours a day. I think that’s an important shift, and this legislation promises to do that.

10:04 Matt: So do you think it will pass?

10:08 Lisa: I do, I think that… I think this government… I mean I’m not an insider in the legislative process, but from what I hear, this government is committed to getting this legislation passed before the election and they really do, I think, want to be the government that ends solitary confinement and that implements, in some way at least, the inquest recommendations following the death of Ashley Smith. They’re also facing two major charter lawsuits that are now set to be heard in provincial courts of appeal in Ontario and British Columbia. And the the legal effect of the judgements that we’ve already had in those cases are that the current provisions that allow administrative segregation, are set to fall, they’ve been declared unconstitutional. There’s been a sort of delay in the effect of those judgements to give government a chance to respond, but those provisions are soon going to be void.

11:10 Matt: Right?

11:10 Lisa: So, the government really did have to act, given that that litigation is… The results of that litigation.

11:18 Matt: So this is a bit kind of spinning, at the end of the day. They’re sort of getting ahead of it and saying, “Look, we’re doing something great,” when kind of the writing was already on the wall, and they were gonna be put in that position regardless, right?

11:28 Lisa: Look, they’re government, they’re government, they’re trying to do multiple things at a time and they’re always… And they’re always having to choose what priorities they have, at any given time. This government when it came to power in those mandate letters that were released from the Prime Minister to his various ministers, they said the Public Safety Minister was directed to implement the Ashley Smith recommendations, did they work on that on day two? No. But it’s not surprising that, especially when it comes to prisoner rights, this is not a… Prisoners aren’t a group that most government spend time working for, unfortunately, they’re a very marginalized voiceless population, so it’s not surprising that pushing through with lawsuits even when we had a government that indicated willingness to reform was still hugely necessary in pushing this to the top of the list. Public Safety Minister is probably one of the busiest ministers in this government and I think that it’s understandable that it took… That it took ongoing pressure to push this legislation to the top of his to do list.

– Matt Shepherd and Lisa Kerr, “A LOOK INSIDE SOLITARY (AND THE PROMISE OF REFORM).” Queen’s University Law Podcast Series. October 29, 2018.

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“An Ontario judge cited “unduly harsh custodial conditions” in sparing further jail time for a small-time drug dealer who was busted after selling heroin to an undercover police officer.

Robert Duncan served just over 200 days of pretrial custody at the Toronto South Detention Centre (TSDC), according to a judge’s decision.

Duncan was on lockdown 38 times, according to a letter from a security manager at the facility that was filed in court and obtained by CBC Toronto. Almost all the lockdowns were due to staffing shortages and 15 of the incidents lasted longer than 24 hours.

“Duncan’s time in pretrial custody was qualitatively oppressive and physically detrimental,” Justice Katrina Mulligan wrote in her decision allowing Duncan to walk free. Mulligan sentenced Duncan to a fine and probation.

The defence contended that Duncan’s pretrial custody should be multiplied at a standard rate — one point five days for every one day served — and that he deserved an additional credit of 56 days, equal to about a year in custody, which Duncan’s defence successfully argued was appropriate for his crime.

Mulligan also found Duncan, who suffers from chronic back pain, received “questionable” medical treatment at the detention facility.

“He suffered more than others would or should,” she wrote.

Mulligan’s decision raises concerns about issues at a new and expensive detention centre that officially opened in 2014, and housed an average of 873 inmates in 2017, according to the province.

Criminal lawyers have told CBC Toronto that the lockdowns have contributed to shorter sentences for inmates, although there are no firm numbers about how often this happens.

Inmate says he was denied medication

The TSDC was the subject of a lengthy expose in Toronto Life magazine last year, while the province also faces a class action lawsuit over frequent lockdowns in detention facilities, including Toronto South.

The Toronto South Detention Centre was opened in 2014, but has been the subject of criticism in recent years. (Nathan Denette/Canadian Press)

In an affidavit obtained by CBC Toronto, Duncan said he experienced “pain and numbness” following an injury in 1999 and was diagnosed with osteoarthritis in his lumbar spine. Duncan also said he was given opioids when other treatments failed.

He said he was denied access to adequate medication while in custody and went through withdrawal in jail.

“Despite having my prescription information from my pharmacy,  they would not provide me with my regularly prescribed medication,” he wrote.

He said he experienced pain and dizziness, and had trouble sleeping after the first doctor he saw at Toronto South “would not prescribe opiates.”  

“My level of pain was unbearable.”
….

Province won’t discuss staffing

Monte Vieselmeyer, chair of the corrections division for the Ontario Public Service Employees Union, said the South is short-staffed.

“I would say we’re probably now … a good 50 to 100 full-time staff behind where we need to be,” he said.

A spokesperson for the province said in an email that there are “sufficient staff to run the institution in a safe and secure manner and new staff are added on a regular basis.” The spokesperson would not comment on staffing levels in detail, citing unspecified “security reasons.”

However, those staff are facing challenges.

There were 138 assaults by inmates on staff at TSDC in 2017, according to provincial statistics.

Sent to segregation

Duncan, who could not be reached for comment, described his time in custody in an affidavit filed in court.

In February, Duncan fell from his bunk and his head was cut open after he drank contraband alcohol. Reports written by responding staff and obtained by CBC Toronto describe Duncan as belligerent, and said he was using racist and misogynistic language before he was taken to hospital.

In his affidavit, Duncan said that after he was treated in hospital, he was escorted in a wheelchair to a van, where jail staff told him to stand. When he said he couldn’t, Duncan said detention centre staff lifted him by his arms, but he could not raise his legs.

“The officers then threw me forward into the van, head first, then threw my legs over top of me into the van,” Duncan wrote, adding he was left on the floor of the vehicle for the trip back to TSDC.

Upon return, Duncan said he was placed in segregation without a mattress or pillow.

Mulligan cited Duncan’s treatment by staff in explaining her decision to side with the defence and spare him further time in custody. Staff’s poor handling of Duncan’s medical condition, she wrote, combined with lockdowns, “contributed to what can only be described as unduly harsh custodial conditions.”

Igbokwe said human rights extend inside detention facilities, even if “jail is not intended to be a great, wonderful place to be.”

“At the end of the day, we live in a society that respects basic human rights,” she said.”

– Stephen Davis, “Convicted drug dealer faced ‘oppressive’ conditions inside Toronto jail, judge rules.” CBC News, August 23, 2018.

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“This drastic revision of penality’s logic [from punishment to rehabilitation] occurs precisely at the historical moment when the political franchise is being extended to include the mass of the (male) working class within its terms for the very first time…At precisely the same time a whole series of institutions and regulations are put in place which are designed to identify all those legal citizens (or prospective legal citizens) who lack the normative capacity to participate and exercise their new found rights responsibly. Once identified, these deviants are subject to a work of normalization, correction or segregation, which ensures one of two things. Either they become responsible, conforming subjects, whose regularity, political stability and industrious performance deems them capable of entering into institutions of representative democracy; or they are supervised and segregated from the normal social realm in a manner that minimizes (and individualizes) any ‘damage’ they can do.”

– David Garland, Punishment and Welfare: A History of Penal Strategies. Aldershot: Gower, 1985. p. 249

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IX. HABITUAL CRIMINALS

Another aspect of the rehabilitative ideal was the segregation
of offenders into categories to prevent “contagion”. Some
classification took place in the 1930s with the construction of Collins
Bay in Kingston and Laval at St. Vincent de Paul for younger and less
hardened offenders. The construction of these institutions is
important in the history of sentencing because, for the first titre, the
judges lost a great measure of control over the institution in which
the sentence would be served. It was now up to the Penitentiary Branch
to decide where an inmate sentenced to over two years would go. Prior
to this, the Ontario judge, for example, made the decision between a
provincial institution or Kingston Penitentiary, the only Federal
institution in Ontario. 

There had also been some attempt in earlier years to segregate
some of the more brutal offenders by using the Prison of Isolation at
Kingston. One group in particular that was thought to require
special attention was the habitual criminal. The Gladstone Committee
of 1895 talked of the “large class of habitual criminals not of the
desperate order, who live by robbery and thieving and petty larceny,
who run the risk of comparatively short sentences with comparative
indifference.  The Committee recommended "that this class of
prisoners should be kept as a class apart from others. We think that
they are a most undesirable element in a mixed prison population, and
that they require and deserve special treatment.” Moreover, they said,
“a new form of sentence should be placed at the disposal of the judges
by which these offenders might be segregated for long periods of detention….” Such special legislation was enacted in England in
1908, but not in Canada. The Archambault Report recommended
that similar legislation be passed and in 1947 such legislation
was enacted. A habitual criminal was defined as one
who “has previously, since attaining the age of eighteen years, on at
least three separate and independent occasions been convicted of an
indictable offence for which he was liable to imprisonment for five
years or more and is leading persistently a criminal life”. A person
found to be a habitual criminal would be incarcerated for life, with a
yearly review. The English legislation, it should be noted,
was repealed in 1967. As the Ouimet Report pointed
out, legislation “was enacted in Canada at a time when its
defects were already being recognized in England”. The Ouimet
Committee recommended its abolition. In 1977 the habitual
criminal legislation was repealed and replaced by “Dangerous
Offenders” legislation.

– Martin Friedland, “SENTENCING STRUCTURE IN CANADA: HISTORICAL PERSPECTIVES.” Research Reports of the Canadian Sentencing Commission. Toronto: University of Toronto 1988 pp. 44-45  

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Laval Institution

149. The Laval Institution, if its former history as St. Vincent de Paul
Institution is included, has had an eventful history. Several times, it was declared
unfit for use, but was reopened in 1973 as a result of an unexpected increase in the
number of inmates in Quebec. At the time of its reopening, it no longer had any of
its previous facilities or workshops.

150. The disturbance at the British Columbia Penitentiary began at 6:40 p.m.
P.D.T. on September 27, 1976. The disturbance at the Laval Institution commenced
just over two hours earlier at 7:25 p.m. E.D.T. on the same day.

151. The Laval riot followed some nine months of unrest at that institution,
but in this case there was no prominent history of disaffection between the
administration and the P.S.A.C. local nor problems of internal communication.
There was, however, dissatisfaction by the inmates.

152. The period of disturbance began on January 7, 1976, when 158 inmates
refused to participate in the normal daily activities and remained in their cells. At
the same time, the Inmate Committee submitted grievances in some 16 areas. The
inmates remained in their cells without working for a month. During this time the
grievances were negotiated to the apparent satisfaction of both sides and on
February 6, institutional routine had returned to normal. However, a hostake-taking
incident on May 17 by two inmates of Cell Block 1 revealed that since the strike a
number of events had brought about an unstable atmosphere within the institution.
Hostage negotiations were successful and the incident was over in 14 hours.

153. On August 16 some prisoners in Cell Block 1 (a segregation area)
demolished their cells, throwing everything (pieces of porcelain, trays, etc.) into the
range. This was cleaned up by the staff, but the throwing was repeated on the
following day, and at that time, to prevent the officers from cleaning it up, pieces of
debris, excrement, and urine were thrown on them. Since the prisoners refused to
clean their cells, on August 18 seven of the worst offenders were transferred to Wing
B-14, which was opened to receive them.

154. However, a verbal promise had been made by the Administration following
the inmates’ strike in January not to re-open B -14, and inmates gave the Director
an ultimatum “either close B-14 in accordance with the promise or there will be
trouble”. On August 19, a new Inmate Committee was elected, met the Director,
and successfully negotiated the return of the seven inmates from B-14 to the regular
segregation block on the promise of good conduct.

155. At 11 p.m. on September 5, 226 inmates refused to return to their cells,
until they received assurances that their grievances would be heard two days later.
On September 11, there was again a refusal to re-enter the cells.

156. On the nights of September 21 and 22, prisoners returned to their cells
but refused to close the cell doors. The guards proceeded down the rows involved and
closed the cell doors. On September 24 at 11 p.m. some inmates again refused to
enter their cells. The security door at the end of each row was locked, and the
prisoners were then free to roam at will within their respective ranges. This time the
Inmate Committee informed the Director that, because of their grievances, the
inmate population would not re-enter their cells. The situation remained relatively
stable over the weekend, and excellent written communications were maintained
between the Inmate Committee and the administration. Eighteen documents were
exchanged on Saturday, seven on Sunday, and ten on Monday.

157. The administration had originally made the decision not to take any
action before Monday. On Monday afternoon it was agreed by the Director and the
Commissioner of Penitentiaries that, rather than use force immediately, the Commissioner
would meet with the Inmate Committee on Thursday. This information
was relayed to the Committee. The Committee undertook to conduct a vote of the
inmates on the matter, and said that the results would be made known to the
administration no later than 7:30. At 7:25 p.m., under what they considered to be
provocation from the presence of the anti-riot squad around the dome, the inmates
sacked their cells, burning and breaking everything accessible. However, there is
some evidence that this was a concerted and timed action on their part.

158. The fires made it necessary for the inmates to evacuate the cell blocks.
As they exited, prisoners were searched, stripped of unnecessary items, and directed
to the exercise yard, where they remained in the yard throughout the night, and
during this time burned everything combustible in the yard, as well as throwing
stones and causing other minor damage.

159. The only injuries sustained during the disturbance were suffered by five
inmates. Three of these were of a minor nature, but two inmates were either pushed
or fell from the balconies during the evacuation and required hospitalization.

160. The Institution received assistance from the R.C.M. Police, the Quebec
Provincial Police, the Canadian Armed Forces, the Laval Fire Department and the
Laval Police Department. Subsequently, by September 30 all inmates had been
moved from the yard-110 were transferred to the Correctional Development
Centre, to Archambault Institution, and the remainder were relocated within the
Institution. Damage was estimated at $700,000.

161. An administration estimate is that of the 53 demands made by the
inmates up to July, 1976, 33 had been accepted by the administration, 5 were under
consideration, and only 15 had been refused. Whether or not this estimate is
accurate in its numbers, the inmates believed that conditions remained bad. However,
there was excellent communication between the administration and the Inmate Committee even during the times of stress. The Inmate Committee perhaps intended
the protest to remain peaceful. If so, it lost control. But it is also a plausible
hypothesis that the disturbance resulted from careful planning rather than from
random anger.

162. In retrospect it is clear that the temporizing with the problem which
marked the administration’s conduct from at least September 24 was most unwarranted.
We believe that a disturbance has already started when inmates are able to
roam freely through their ranges without control, and that this condition should not
have been allowed to continue for three days for any reason.

163. Weakness on the part of the system will always be exploited by those in
prison, just as they saw fit to exploit such weaknesses when they were at large in
society. Fairness and decency do not imply weakness. The protection of the public,
including custodial personnel and more placid inmates, demands that order be
maintained within our penitentiaries at all times. This must be a first commandment
for the Penitentiary Service. Regrettably, that commandment was seriously breached
in this case. 

–  Mark MacGuigan, Chairman, Report to Parliament of The Sub-Committee on the Penitentiary System in Canada & Standing Committee on Justice and Legal Affairs. Second Session of the Thirtieth Parliament, 1976-77. pp. 28-30.

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“Have Experts See Patients,” Toronto Globe. February 20, 1919. Page 07.

And Decide What Institution Best for Them to Live In

FEEBLE-MINDED INQUIRY

Dr. C. P. Johns, physician at the Jail Farm, testifying before Mr. Justice Hodgins’ Commission inquiring into the extent of feeble-mindedness in Ontario, at the Parliament Buildings yesterday, suggested that there should be a clearing house in Toronto for mental defectives, where experts could examine patients and decide as to the institutions in which they should be placed. he advocated sending them to farm colonies for treatment, but not too many to one place. Dr. Johns said that from 35 to 40 per cent of the 289 inmates at the Jail Farm were subnormal mentality. The problem of disposing of these people was a difficult one. He complained of the difficulty in getting into Government institutions on account of delay, referring particularly to the Orillia Hospital.

Canon Tucker of London said he believed there were between 40,000 and 50,000 feeble-minded persons in Canada. The Church of England in Canada was organized for social service work, and it felt it owed a Duty to the State in respect to the health, morals and general welfare of the people. He promised the whole-hearted support of the Anglican Church to the Government in carrying out any well-developed scheme. ‘In the course of one or two generations feeble-mindedness could be eliminated altogether from our social life, if these people were segregated and treated in a kindly way and useful employment found for them,’ Canon Tucker said. ‘There should be a more thorough examination of immigrants before sailing for Canada.’

Dr. Lillan Langstaff, Superintendent of the Women’s Industrial Farm, said that 40 per cent of the inmates there were mentally defective. Classification she suggested as a solution, as moral degenerates taught vice to the ordinary feeble-minded person.

Mr. J. J. Kelso, Superintendent of Neglected Children and Inspector of Industrial School, recommended that local homes should be provided, the Government to undertake the capital expenditure and the municipalities and benevolent people to provide for the upkeep, with the assistance of women’s organizations.

The inquiry will be continued this morning, when Dr. Helen MacMurchy will testify.

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