The Canadian Bar Association’s Criminal Justice Section and its Committee on Imprisonment and Release wrote to warn that Correctional Service Canada’s proposed policy does not meet international standards surrounding solitary confinement and violates the Charter of Rights and Freedoms.
According to the United Nations Mandela Rules, solitary confinement is defined as 22 or more hours each day in isolation without meaningful contact. Current legislation in Canada says Structured Intervention Units, or SIU, require four hours a day out of cell, with at least two of those involving meaningful human contact.
People who are held in SIU have often experienced trauma and may suffer from the effects of isolation. This context is important and if the policy is to meet the needs of those inmates, rather than simply be punitive, it should encourage more than two hours of meaningful human contact each day. “It should ensure that people held in SIU have access to full days of meaningful human contact, including access to independent services like counselling aimed at addressing the impact of prolonged isolation and trauma,” the submission reads.
The Mandela Rules also state that more than 15 consecutive days of isolation constitute torture. The Ontario Court of Appeal found, in Canadian Civil Liberties Association v Canada, that it violates section 12 of the Charter and amounts to cruel and unusual punishment.
According to the 2021-2022 Annual Report of the Structured Intervention Unit Implementation Advisory Panel, well over half of SIU stays exceeded 15 days. The CBA Section is concerned by this and recommends that policy clearly prohibit the use of SIU for more than 15 days for anyone.
The CBA submission also recommends CSC policies use the internationally recognized “meaningful human contact” definition instead of the current “opportunities to interact with others.” Policies should require that opportunities to interact be wanted by the person held in SIU, and meaningful to them.
Indigenous people in SIU
The Panel Report cited above also indicates that while Indigenous people represent 4.2% of the population in Canada, they constitute 32% of people in federal prisons and 40% of prisoners in SIU. The number is much worse for Indigenous women prisoners, who account for 76% of prisoners in SIU.
The draft policy discusses the obligation to document how a person’s Indigenous Social History factors influenced the behaviour that led to the SIU. The CBA Section “believes the draft policy should be amended to refer to Indigenous Social History only to address need through alternatives to SIU, to decide against transfer to SIU, or to remove someone from SIU” to comply with the Corrections and Conditional Release Act.
Mental health disabilities
In order to comply with the Mandela Rules, people with mental health disabilities should not be placed in SIU, and decisions about whether an inmate should be considered fit for SIU should be made by health care professionals, not to be overruled by non-medical staff.
“The Panel Report states that 29% of men and 64% of women in SIU are identified by CSC as having mental health challenges,” the CBA submission notes. The Section is concerned that “the draft policy allows people to be held in conditions that the United Nations considers to be torture or cruel treatment and fails to direct health care professionals to comply with their ethical obligations under the Canadian Medical Association’s (CMA) Code of Ethics and Professionalism, Canadian case law and the Mandela Rules that require them to report signs of torture or cruel treatment and to recommend against it.”
The CBA Section believes CSC must change its policy of responding to self-harm with force by correctional officers, and that people at risk of self-harm or suicide should not placed in isolation. As well, if it wants to get people out of SIU, CSC “must address the concerning staff culture among officers in maximum security and SIU.”
Right to counsel
Finally, the CBA Section believes the policy with regards to the right to counsel should be strengthened so that people have a right to retain and instruct counsel when they are subject of an authorization to transfer to SIU, a higher standard than “reasonable access” or “right to contact, communicate and meet” with a lawyer.
“The right to counsel requires CSC to communicate directly with a person’s legal representative,” the submission reads. “It should not require the person to fill out consent for disclosure forms, or to identify which documents to share with their counsel.”