Canada’s prison agency closes in on new solitary confinement rules

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Canada's prison agency is close to establishing new rules that would prohibit the placement of vulnerable people in solitary confinement and increase the time segregated inmates can spend out of cells.

The new rules come at the behest of a Liberal government that pledged shortly after the election to overhaul how the national jailer isolates prisoners, but, until now, had yet to wring meaningful concessions from Correctional Service Canada.

The draft changes are detailed in Correctional Service documents obtained by The Globe and Mail and distributed to a wide range of stakeholders, many of which have been pushing the agency to overhaul its solitary-confinement practices for years with little to show for it.

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While the proposals don't come close to satisfying long-standing demands placed on the agency by watchdogs and prisoner-rights groups, they would significantly alter segregation methods.

"These reforms confirm that the Correctional Service of Canada understands the severity of isolation," said Lisa Kerr, assistant professor at Queen's University Faculty of Law. "In the midst of litigation and intense media scrutiny, CSC is taking some significant steps that it had, for many years, refused."

The documents propose 15 modifications to Commissioner's Directive 709, the internal CSC rule governing administrative segregation.

Among them is a revision that could pave the way for the elimination of solitary confinement entirely, at least as the term is defined by the United Nations.

The draft rule would require staff to offer all inmates in administrative segregation at least two hours of time out of their cells – doubling the current allowance.

The "Mandela Rules," adopted by the UN General Assembly in 2015, define solitary confinement as "the confinement of prisoners for 22 hours or more a day without meaningful human contact."

Anything short of 22 hours, then, wouldn't technically qualify.

"They are taking administrative segregation out of the UN definition," said Jennifer Metcalfe, a lawyer and executive director of Vancouver-based Prisoners' Legal Services. "That's significant, but doesn't go far enough."

Even though current rules state inmates should receive at least one hour free of their cells, it is not always followed, according to advocates and inmates interviewed by The Globe, which has written extensively on the use of solitary confinement in Canada.

Another draft rule would place new limits on the widespread practice of placing mentally ill inmates in isolation. In stark terms, the proposal would prohibit segregating prisoners with "significant impairments," prisoners who have been certified under mental-health legislation and any prisoners who are self-harming or at "imminent risk for suicide."

Pregnant, physically disabled and terminally ill inmates would also be barred from segregation.

One purpose of the modifications is to "ensure that vulnerable offenders are not placed in administrative segregation, except in exceptional circumstances," the documents state.

"These might seem like obvious commitments, but never before has the CSC agreed to prohibit the segregation of any vulnerable category of inmates," Ms. Kerr said. "The language in the new policy still indicates a high bar for actually receiving these protections, and we will now have to debate what 'significant impairment' and 'imminence' will actually mean."

The proposed rules allow some exceptions to these prohibitions, but give staff just 24 hours to move the inmate to alternative accommodations.

Those inmates who do land in segregation would be entitled to new privileges, under the draft rules. Each isolated inmate would have immediate access to personal property related to hygiene, religion and medical care. And within 24 hours, they would have access to all their personal property – subject to space and safety considerations.

Lack of access to showers and personal property in segregation is a common complaint among inmates, according to Ms. Metcalfe, who added that the CSC could move close to the "meaningful human contact" suggested in the Mandela Rules with regulations that mandate one-on-one therapy for segregated inmates.

A CSC spokeswoman said the government directed the agency to update its segregation methods to reflect "evolving best practices" elsewhere. "As such, we continue to explore various options to continuously improve our policies and procedures on administrative segregation," Laura Cummings said.

The prison agency is looking at changing a directive focused on the care of self-harming and suicidal inmates, as well, according to the documents. Draft changes would require enhanced monitoring and new responsibilities for health-care staff in cases of inmates on suicide watch.

There is no mention of limiting the number of days an inmate can spend in segregation or establishing any manner of independent oversight of the segregation process. Both measures have long been the focus of prison watchdogs and prisoner-rights advocates – including the federal correctional ombudsman.

"There seems to be a profound level of resistance within CSC to independent oversight of administrative segregation," Ms. Kerr said. "I think we have to wonder why."

Those advocates have also called for changes to solitary-confinement practices to be enshrined in legislation rather than commissioner's directives, which the CSC can modify at will.

"Recent history tells us that segregation policy can change quickly," Ms. Kerr said. "Rules protecting fundamental human rights should be set by Parliament, rather than delegated to the prison service."

Since the 2015 federal election, the Liberal government has pledged to change correctional practices so they conform with recommendations arising from a coroner's inquest into the death of New Brunswick teenager Ashley Smith.

That coroner's jury called for an end to long-term segregation, defined as any term beyond 15 consecutive days (and up to 60 cumulative days in a calendar year), and the establishment of an independent body to review all offenders in segregation.

The federal government is facing multiple lawsuits alleging a range of human-rights violations in its administrative-segregation practices. Ottawa managed to delay one major lawsuit being brought by the BC Civil Liberties Association and the John Howard Society of Canada based on the argument that it was about to mend its ways in the form of spring-session legislation. Hope for that legislation has since waned and the judge in the case ordered it to go ahead.