“Challenging Solitary Confinement” Asper Centre Public Interest Litigation, March 2, 2018


I’m asking everybody to take their seats, we’re gonna get started. Welcome, I’m Cheryl Milne,
the executive director of the Asper Center for
Constitutional Rights, I’m really excited about today’s program, I want to thank all of the
contributors who proposed such interesting and
such a variety of papers, the papers we have
planned for publication, some of the longer papers
are going to be published in the Supreme Court law review, and then the longer ones
along with the shorter ones, we’re hoping to produce a softcover book following the Supreme
Court law review as well, so we’re really excited
about having resource about public interest
litigation in Canada. Just some logistics, you’ll see at the top of
your program the schedule, there is the information
if you want to connect to Wi-Fi throughout the conference today, and also if you want to access the papers, we’ve password protected them, so that those of you who have
registered and are part of the conference get privileged
access to the papers, it’s not out there to the general public, a lot of them are in
very much a draft stage, so please ensure that
if you plan to cite them or use them that you
contact the authors directly to seek permission for that. I’m also happy to announce
that the Law Society of Ontario has accredited two of our
sessions for professionalism, that’s the vulnerable
litigants and groups session, and the housing rights session both have professionalism hours, quite frankly many of these sessions today probably could have fit that, but we went Conservative
on seeking accreditation for professionalism just
because it’s a bit of an administrative nightmare, but we also have 6.5
substantive hours as well for this program for the Law Society. The rooms you’ll see all
here so you won’t get lost trying to find where the rooms for the concurrent sessions are, J125 and J130 are just outside the door on the right hand side down the hall, and I know that there’s been a few people who have jut registered today, our lunches are box lunches because we’ve only got a half hour, and then we’re going to
have our lunch break, so I’d just ask the people
who just registered today to just holdback to make
sure that there is enough, because we may not have
ordered a lunch for you, but I’m hoping they’ll
be enough for everyone, we’ll just have to see. Anyway welcome, I wanted to also thank and acknowledge Tao Shrier who is now out in the hall so she can’t
get this acknowledgement, so I’ll bring it back
and mention it again when she’s in the room, because she has worked so tirelessly, and those of you who
are presenters will know that they’ve had a lot of
back-and-forth with Tao on papers, and I have to say that
this is probably one of the first conferences that the
Asper Center has organized, where we pretty much
got every single paper in advance of the day, and those of you who have been present at academic conferences
know that that’s a big coup, so I want to thank all of the presenters for being very responsible, so I don’t want to take
any more time away from our first panel which is an
exciting and interesting panel, and I’m gonna turn it
over to Breese Davies the Asper Center’s
constitutional litigator in residence to chair the panel. Thanks Cheryl, I’m only going to give
very brief introductions to the speakers on this panel which is about the recent litigation around The use of solitary confinement
in prisons in Canada, you don’t need much of an
introduction from any of them, and you certainly don’t
need me to get in your way, so I’m just gonna say at my far left, is Lisa Kerr, who is as
most of you probably know an assistant professor at Queens Law, she teaches criminal law sentencing, and prison law, she’s also been involved
with the litigation, both the BCCLA litigation and the John Howard Society litigation around solitary confinement. In the middle we have
Professor Kelly Hannah-Moffat, who is affiliated with center for criminal and socio-legal studies, she also studies and writes
about penal strategies and penal policy, it’s not in her bio, but she also was one of the witnesses at the Ashley Smith inquiry
that dealt with issues around solitary confinement, and beside me is Alison
Latimer who is a partner at Arvay Finlay who were
Council on the BC challenge to solitary confinement, so they have probably more knowledge than any combination of three
people in this country about this issue, so I’m just gonna turn it over to them to talk about the litigation, how the BC case is different
than the Ontario case and where we may be going forward, so I’ll turn over, I think Lisa is going, oh Alison is going first. Okay so it falls to me to go first, I had the very great privilege
to act for the plaintiffs in the recent BC challenge
to the provisions of the corrections and conditional release act that authorized
solitary confinement in the Canadian penitentiaries, I was acting for both BC
Civil Liberties Association and the John Howard Society, so two awesome institutional
plaintiffs with just a wealth of knowledge and
understanding about the issues that arose in that case, that case ultimately resulted
in a judicial declaration in January of this year that
those laws unjustifiably infringe sections seven
and 15 of the Charter, and the laws were struck
down to the extent that they authorize and in effect prolonged an indefinite solitary
confinement for anyone, that they authorize in
effect the warden to be the judge and prosecutor in his own cause, that they authorized internal review, and authorized in effect
the definition of an inmates right to counsel at segregation
hearings and reviews, they were also struck
down to the extent that they deprived inmates of
their equality rights, and in particular by authorizing
and affecting any period of solitary confinement for a mentally ill or disabled inmates, and authorizing and affecting
a procedure that results in discrimination against
indigenous inmates, and those declarations of
invalidity were suspended for a period of 12 months, and in the paper I prepared
for this conference was it was an advocacy piece, and it was written at a time
when it was unknown whether or not the attorney
general will be pursuing an appeal in the BC litigation, and what I did was I
advocated that this case, presented a perfect opportunity
for constitutional dialogue, and for a legislative correction of this basically outdated
and inhumane regime, but unfortunately, just after I submitted my
paper on February 16th, we were served with a notice
of appeal in the BC case, and so I was getting
ready to make some remarks at this conference today, and I’m sort of bemoaning
the fact that my paper had become stale dated, and wondering what I would talk about, and I was complaining about
this with some friends, and they thought it was
just really crazy that I ever thought that the
decision might not be appealed. (audience laughs) And so I thought that that reflection back to me about my paper was valuable, it reflected a really good understanding of how constitutional
litigation ordinarily operates, that is that there will
always be an appeal, but I thought that in this
case it actually highlights a misunderstanding or
an information gap about the unique context of
this particular case, what made it so challenging, and why I say I did honestly
and not naively hold the view that the
government might not appeal, so that’s what I wanted
to talk about today in my 10 minutes. So in order to do that I need
to go back to the beginning, which is when we filed
this lawsuit which was in January 2015, but the impetus for the case
came much earlier than that, it dates back to the death
of Ashley Smith in 2007, and you will recall that
she was a 19 year old who died alone in her
work solitary confinement cell after more than a year
of solitary confinement, she wrapped a ligature
around her neck and cut of the airflow, and CSD staff failed to
respond and ultimately that failure cost her her life, and it was deemed to be a homicide, and following that incident in 2008, the correctional investigator recommended that corrections implement independent adjudication
of segregation placements of inmates with mental health concerns within 30 days of placement, the corrections rejected
that recommendation, and there was also a coroner’s
inquest into her death, and in 2013 the verdict and over a dozen recommendations
were made from that inquest, and those were released, the key recommendations from that process included abolishment of
indefinite solitary confinement, and a prohibition on
placing female inmates in solitary confinement
in excess of 15 days, and corrections of course also rejected those recommendations. And then two years after the release of the correctional investigator’s report into Miss Smith’s death, another inmate Edward Snowshoe who was a 22-year-old aboriginal
man hanged himself in his segregation cell
after spending 162 days in solitary confinement, and then in 2015 in
British Columbia another man Christopher Roy whose
father testified in our case, was found hanging by
his neck in his solitary confinement cell after
spending approximately two months in solitary confinement, so those are just three
examples that illustrated that there were really
significant problems with solitary confinement, although they were
brought to the attention of the government, those were not being remedied at an institutional or political level, and returned to the courts, but then we had recent hope, because as I said we followed
the lawsuit in January, and then there was a federal election, and in November of 2015, the new Prime Minister, I think for the first
time ever made public the mandate letters that
he issued to his ministers, and in the mandate
letter that he issued to the Minister of Justice
and Attorney General, he tasked her to conduct
a review of changes in the criminal justice system, and stated that the outcomes
of that process should include among other things implementation of the Smith recommendations, so we thought that’s great, so we’ve waited, because we thought this will
surely affect the litigation, but there was no amendment
to the pleadings in our case, and the litigation was defended on exactly the same basis that it always had been, so we filed a notice to admit, and we asked the Attorney
General to admit, that it intended to implement the Ashley Smith recommendations as the mandate letter stated it should, and we thought that would
significantly narrow the scope of the litigation, and the attorney general
refused to make that admission, so we weren’t sure what to
make of that disconnect between the public position of the government and the litigation position. But there were other
changes afoot that still caused hope to spring eternal, there were amendments to
the commissioners directive 709 that govern solitary
confinement together with the act and the recommendations, and those provisions, they included accelerated internal reviews of solitary placements, none of them prescribed a time limit on the duration of segregation, they didn’t end its indefinite nature, but we did see the numbers
of placement dropping, and the length and duration
of segregation dropping, and so there was cause to be optimistic, we had initially set the
trial for January of 2017, and then in December the
attorney general came to court and again caused
us to be so hopeful, because they represented
that amendments to the law and practice
of solitary confinement were imminent, and likely
by the end of April, and so we consented to an
adjournment of the trial, and the court did adjourn the trial, and then by April nothing happened, there was no legislative change, there was no policy change, the trial was again set down, now for July, now we were right up against the judges statutory retirement, we had to keep the trial moving, and then about two weeks before the trial Canada introduced a bill, into the House of Commons, Bill C56, and this bill it presented
a presumptive time limit of 21 days that could be
overridden by the warden, it introduced the idea of a reviewer who would review segregation placements and recommend whether
inmates should be released, those are only recommendations though, and there was a further
provision that after a year and a half that
21 day time limit will be down to 15 days, and corrections also said
look in addition to this bill we are going to amend the
commissioners directives, and those amendments were
potentially significant, it was going to prohibit
the use of segregation for certain inmates with
serious mental disorders, who suffered significant impairment, and inmates who were certified, and inmates who were at
imminent risk of suicide and self injury, and also improved some of the conditions of solitary confinement, more times out of the cells, daily showers, immediate access to the
inmate’s personal effects, so in light of all that
about a week before the trial was scheduled, after we had organized
all the witnesses coming from all over the world
to come and testify, the attorney general again
sought an adjournment, and we opposed it, we said the bill and the
commissioner’s directives didn’t need the challenge we had brought, they fell well short of that, and because of the timing
and the history that I’ve just gone through
about these insufficient abortive attempts to
amend the legislation, we didn’t feel that optimistic that those changes were coming, and the court did
dismiss that application. And then pretty much right
on the eve of the trial, the attorney general served us with notice of application of leave to
appeal on an expedited basis, effective on the appeal on
the adjournment application, we were in court on another matter, we could only respond just with a letter saying this is crazy we can’t do this, and the court of appeal
dismissed the application to expedite the leave
to appeal obligation, so that meant that the
leave to appeal application wouldn’t be decided until
after the trial was concluded, and so ultimately it was abandoned. So we did go to trial, and the BC trial spanned nine weeks, there were 28 witnesses
cross-examined before the court, multiple expert witnesses
on a range of subjects relating to the practice
and effects of segregation, and the court ultimately did identify multiple constitutional
deficiencies within the legislation itself, not how it was being administered, and after that decision came down, now the Minister of Public
Safety said in a statement that the government was
going to identify further and better ideas that
need to be incorporated into the reform package, so in light of that statement, I’d say it was very, very
disappointment to learn that Canada was in fact pursuing an appeal not considering legislative changes, which has been its
stated intention since it was elected in 2015, it’s a significant outlay
of public resources to pursue an appeal in
litigation like this, and the bill has only
passed first reading so there’s lots of time to fix it. I say that the legislative
response is actually closer in keeping with the
government’s most fundamental role as the primary protector
of the public interest, and its publicly stated
commitment to sunny ways, and its publicly expressed will to reform the laws and practice
of solitary confinement, and what would be needed
to amend the bill so that it would comply with the judgment? First of all it would need
to have hard time limits on the duration of
administrative segregation, the judge in our case
described the 15 day standard that has been accepted internationally as a generous standard, so the time limit certainly should not be any longer than 15 days, it would need an
independent external review no later than five days
after the placement decision, and that person would
have to have authority to release the inmate from segregation, it would need to include
assurance that inmates could have counsel at
segregation review hearings, it would need an absolute
prohibition on subjecting mentally ill or disabled
inmates to solitary confinement, you know the new
commissioners directive that I mentioned that had this
limitation on placing these people in solitary confinement was actually introduced
after we closed our case in the solitary case, so we had to explore how it
operated in cross examination in the government’s case
which is always a bit scary, and the judge found that it fell short, it was too narrow, it was too vague, it wasn’t being operationalized. Any new framework would
need to be designed and implemented to prevent discrimination against indigenous inmates, the court identified some ideas about how improvements could be made, Parliament could and
certainly should consult with the appropriate indigenous
groups on the design and implementation of necessary amendments to the bill to fix that, and Justice Leese also said that inmates who seek segregation for
their own protection, so-called book voluntarily
segregation cases, should not be held in
solitary confinement at all, those people should be
managed in the subpopulation, and he made findings about
ways that the conditions of confinement in solitary
confinement could be improved, no more communicating
through the food slot, it’s in humane, it’s like from a different century, and while we certainly
defend to vigorously defend the appeal, I do remain hopeful,
if no longer optimistic that Canada will do what
I say is the right thing and defend the constitutional rights of the most vulnerable populations
in this case inmates by amending the laws instead
of dragging out the litigation. Lisa your turn. Thanks so much, good morning everyone
is such a privilege to be on a panel with these
three amazing women, so I’m gonna build off of Alison’s remarks and spend most of my time
identifying similarities and differences between the
BC and Ontario decisions, and then at the end I will
briefly raise a concern that is always present in
public interest litigation and that is concern with the risk of unintended consequences, So I’ll close with summaries
about the institutional and legislative responses that we might see following these cases. So first what these
two decisions agree on, both courts, both BC and Ontario reject
the long-standing position from Corrections Canada that our prison system doesn’t even use solitary, both courts find that solitary has severe effects on mental health, that was contested to a
degree by Canada’s experts, and both declare that the
current rules governing the use of solitary are
arbitrary and unfair and violate section seven and
are struck down on that basis, so those are the similarities, but I think the differences
between the two cases are far more numerous and substantial
than the similarities, so I’m gonna deal first
with two procedural issues, the issues of oversight
and access to counsel, so on oversight, both decisions discuss the need for greater oversight at length, both emphasize as Alison has mentioned the current regime allows prison wardens to review their own
decisions to segregate, the Ontario court called
this futile review quote an anomaly even within the context of penitentiary decision-making, and I take that to mean
even within the context of generally lame
decision-making, it’s pretty bad. Okay so the Ontario court does not however hold that the additional oversight, the additional review has to be done by someone who is independent, who is not employed by the
Correctional Service of Canada, instead CSC can do the extra review, but what I want to
emphasize is that part of the decision in Ontario
extends to six paragraphs, and in the only paragraph
that attempts to justify or explain why the review
can be done by CSC, the court actually cites
the interests of inmates, and their need for
expediency and declining to order independent review, so it’s a bit of a frankly
under reasoned part of the decision, and I think that will no
doubt prompt BC Central to appeal potentially. In contrast the BC court
spends 54 paragraphs or 14 pages discussing
the history of calls for independent oversight of solitary, and explaining why the
prison culture needs a truly independent check, there is one simple explanation
for the BC difference, law professor Michael Jackson who spent an enormous amount of his career on this issue of independent oversight, testifies and files an extensive report, testifies in the BC case, he doesn’t appear in Ontario. Second access to counsel, so the BC court finds that
the charter requires inmates to have counsel present at
segregation review boards, that really wasn’t part
of the Ontario claim, but it is worth noting
that in paragraph 117 of the Ontario decision
the court seems to think inmates already have the
ability to have counsel present at segregation review boards, so in that paragraph the
court refers to section 33 step two of the act, but that provision says
only that the inmate has the right to be present
himself or herself, the regulations say that
the inmates have a right to retain and instruct
counsel and they regularly do with respect to their administrative segregation basements, but there is no provision for counsel to attend administrative
segregation review boards, there is for disciplinary courts, so it shows that where
Parliament wishes to protect the right to counsel
or have counsel present that Parliament knows what to do, I’ve personally attempted
to attend at hearings and have been denied, and that’s a common experience, and it’s really no surprise
because CSC does not tend to go above and beyond
what the law requires of them. Okay so I’m gonna turn out
from those procedural issues to differences in terms of substantive limits on segregation. I think everyone who’s
been working seriously on these issues for many
years has been focused on two main issues, legislative time limits and
the categorical prohibition on segregating vulnerable
groups like the mentally ill, and I think the view there is
that adding a bit of process without those substantive limits, will not significantly
or effectively reform solitary and it certainly
will not abolish it, so as Alison has said
the BC court holds that the charter requires time limits on administrative segregation. (baby crying) Who brought a baby? (audience laughs) Okay so the BC court says the
charter needs time limits, and that the current system
violates section 15 because of its unequal burdens
on mentally ill inmates. Now in much of the Ontario decision the court accepts the facts, the same facts that caused the BC court to reach that conclusion, so for example the Ontario
court accepts evidence, much of it offered from
prison employees that a cap, a time limit on the
maximum amount of time that an inmate can be placed
in solitary is achievable, the Ontario court also
notes things like the fact that Canada has been
censured by the International committee against torture
for its prolonged use of solitary even on persons
with mental illness, notwithstanding these unrelated findings, the court declined to
find that the legislation is invalid because it lacks
time limits or because of how mentally ill people are treated and how they experience segregation. Well now we arrive at
what I think is the most significant overarching difference
between these two cases, the Ontario court basically
says that the problem is not with legislation but
with its administration, and of course this is not
an individual complaint of non-administration but a challenge to the legislation seeking
a section 52 declaration, so the court applies little
sisters and says simply because this legislated scheme is open to maladministration that’s not a basis for striking the law. Because of this frame and this application of little sisters, the Ontario court looks
only at the face of the legislation and asks
whether it ever could be administered in a constitutional way, so to take one example
of how this worked and the reasons why the Ontario
court notes the presence of section 87 sub A of the CCRA and that’s the provision that says
that the services to take into account the health
of offenders with respect to all decisions including placement into administrative segregation, the court goes through
and realizes it’s clear this is not happening with
administrative segregation, but the court says well
the provision is there, so if the legislation were applied, If that provision were
followed with respect to administrative placements, then that would solve the problem, so the problem here is not
with the placement legislation. So the BC court is also
of course looking at the face of the legislation, but finds that the provisions
themselves necessarily give rise to unconstitutional
effects on the ground, it’s the laws that are
authorizing the inhumane forms of isolation that
the evidence spoke to, it’s the laws that fail to
give an adequate standard for things like when an inmate is to be released from segregation, even if a section like
87 sub A is utilized, even that provision doesn’t
generate an adequate standard, because it doesn’t say what healthcare needs might preclude isolation, it simply says consider
healthcare in decision-making, so the BC court finds
infirmities on the face of the legislation and says
that those flaws necessarily give rise to unconstitutional
practices on the ground, so the court is really not
taken with this interpretation or application of little sisters. There’s many other examples
in the Ontario decision, the court almost stretching to find that the current regime is
or could be acceptable, for example paragraph 259, the court begins this paragraph by noting the harms that accrue as
segregation continues, and accepting that the
initial screening mechanisms the CSC are using are faulty, and do not prevent segregation
of mentally ill inmates, but then the court says that
the applicant hasn’t shown that subsequent monitoring
isn’t effective, the final sentence of
paragraph 259 is this, quote, nor do the applicants suggest the ongoing monitoring
of inmates provided in the CSC’s policies would be unable to detect deteriorating health. I find that grammar a little awkward but I think that’s telling, the court is not convinced
that CSC policies would be unable to detect
deteriorating health, I think it’s a strange way of describing the applicant’s burden, and it also presumes that
CSC will respond adequately when they do detect deteriorating
health in segregation, and a great deal of evidence filed in both cases suggests otherwise. Contrast that with the BC approach where the judge really eschews
formalism of this kind and interrogates the various
policies and protections that the CSC says protect
people in segregation, at paragraph 93 for example
the court notes that 14 of the inmates who died by
suicide in segregation between 2011 and 2014
had completed the suicide risk checklist and had been seen by a healthcare professional, inmate Christopher Boyle,
whose father Robert testified for the plaintiffs, completed the checklist and answered no to each of the questions posed, he hanged himself in his
cell two months later while still in administrative segregation. So as my final set of
comparisons on this theme, at paragraph 233 the
Ontario court finds that a daily visit by a nurse
is quote sufficient to negate the potential cruelty
of indefinite segregation, the BC court says this at paragraph 139, quote as I understand the evidence of witnesses describing
the behavior of wardens, correctional staff, psychologists and nurses, most individuals that
interact with inmates simply stand right
outside the inmates cell, speak to the inmates
without making contact and rely on their voices being
heard through the food slot, I consider this behavior to
be demeaning and inhumane. Let me turn briefly to
the section 15 analysis from BC with respect
to indigenous inmates. The BC court spends a great
deal of time discussing how solitary violates a
equality protection because of its disproportionate
impacts on indigenous inmates, the BC court focused
specifically on the experience of indigenous women
thanks in large part to the intervention of
relief at the trial level, indigenous women make up 50 percent of segregation placements
in women’s prisons, and the evidence was
that they tend to suffer more distress in the deprived
conditions of segregation due to their health and
their personal histories, so the BC decision reminds
the federal government that any new solitary laws
will impact indigenous people in distinct and
disproportionate ways, the Ontario decision does not
mention indigenous people, the case was not brought
that way and that evidence was not put before the judge. So my final point on
comparing the two cases, is about the lack of inmate
voices in the Ontario decision, as far as I understand three
inmate affidavits were filed, the only referenced
inmate affidavit evidence is at paragraph 139, but the reference is
not to their experiences under these laws, rather the court mentions
only the criminal records of the three affinitas, the evidence was cited
only to prove the point that prisons are full of
very difficult people, even under the section 12
analysis there is no reference to the evidence of any person
subjected to the practice, and I find that very striking, because the idea, the concept of cruel and
unusual punishment is really about the experience of it, the phenomenology, or
the lived reality of it. In contrast inmate
evidence appears throughout the BC decision, and not only that inmate
experiences are believed and are taken seriously, paragraph 399 to 410
especially but I find to be the most powerful bit of
evidence in the whole case, shows how an inmate named
Blair experienced 79 days of segregation learnt how
the warden who reviewed the decision to segregate,
Mr Pike, employed circular and arbitrary reasoning in
continuing the segregation and I commend those paragraphs to you, Mr Pike, this warden, testified
at trial and was still at trial justifying his
decision to segregate Blair, Justice Leese used this account
as a basis for departing from the Ontario conclusion
that CSC can thoroughly review its own decisions to segregate. So in my last couple of
minutes I want to close with a couple of concerns about the risk that litigation can bring
unintended consequences, I think this is one of the
most important topics for all of us to be thinking
about no matter what kind of cases we’re bringing. So there is a large body
of scholarship from the US on prisoner litigation which
shows how litigation from the 1970s onward has transformed but has not abolished techniques
of repression and control, Robert Parkinson in an excellent book named Texas Tough, describes how the
prisoners rights movement in Texas courts ended crude forms of abuse and neglect but that this period also saw the increase of closed-circuit television, more frequent use of teargas, sophisticated locking
systems and unit management that sought to limit inmate
movement and contact, Parkinson describes how
litigated reform in Texas led to the expansion of
prison infrastructure, unprecedented allocation of
funds in the state budget to prison administration, and discretionary and the
elimination of pockets of leniency in terms of
informal relationships with staff and discretionary
exceptions to prison rules. Between 1968 and 2005
the Texas imprisonment rate grew by 1300 percent, the prison budget went from
20 million to 2.6 billion, throughout this period
the legal recognition of prisoner rights expanded, and the Texas prison system was under almost constant judicial supervision. Kermont Rider’s research on the rise of super max prisons in California, similarly shows how judicial
intervention on the topic of prisoner isolation
in the 1960s and 70s may have contributed to the
design and proliferation of super max prison’s
in the 1980s and 90s, in the first period of
litigation in the 60s and 70s courts articulated
limits on isolation mostly relating to the physical conditions in which prisoners were held, while these decisions
did establish a number of constraints on isolation, the cases also specified
the exact conditions under which isolation
would be permissible, this judicial approach
Rider argues contributed to the development of
the modern super max, now there is a lot more
to say about the stories of unintended consequences from
even successful litigation, there’s lots you could
say to say litigation was not the cause of these issues and so on, but I think my point is that I don’t think that worrying about
that kind of thing means you don’t bring cases, but I do think it means you should have a deep understanding of the institutions, laws and practices that
you are trying to change before filing pleadings, courts must render decisions on the basis of the material in front of them, and in a segregation
context litigation runs the risk of generating what Rider calls a roadmap for constitutional segregation, the worry that arises
from the Ontario decision should it be upheld or
should it lead the way on these issues, is that adding an
internal procedural review is extremely unlikely to
reduce the arbitrariness and the harm that both the Ontario and BC courts found embedded in our use of administrative segregation, thank you. Okay so I just want to
pick up a little bit on some of the points that Alison made, and I have half an hour left, okay so I’m not gonna follow
the PowerPoint too closely, but part of it is just to sort
of give you a little bit of an imagery about what it is
that we are talking about and to break this up a little bit, not being a lawyer but
rather a social scientist, who’s been working on
this issue for 25 years from the outboard commission through to providing export reports
for most of these cases, as well as Ashley Smith
and the current case of Adam Coupe who in Ontario
has been in segregation for four years during his
pre-trial confinement, I think it’s really important
for us to think a little bit about some of the things
that Lisa said at the end, what is it that we are litigating, and what is the cause
and the institutional response to these things, and what are some of the
broader ongoing issues that would be prudent to
think about and consider as we move through these things, I agree with Lisa and I’ll
say at the very beginning that I think it’s very, very important
to litigate these issues, we’re at a particular moment in time, where there is a lot of
litigation that is going on. Okay so when we’re
talking about segregation, just to sort of have
a baseline before I go through some of the ongoing issues, to lead at the top of the discussion, what we’re talking about is people who are being confined into
cells that are eight by 10, about the size of a parking space, were talking about a space
where work, education, rehabilitation programs are non-existent, where television, radios
and reading materials may or may not be permitted, I would say to you just
that new legislation that suggests a little
bit more time in a cell at this is probably not
necessarily the most prudent thing that will make meaningful
impact on the experience, a lot of times we see lockdown 23 seven and potentially now 22 seven, and we have prisoners
spending long periods of time in these enclosed spaces, the meal slots that
people are talking about in terms of where the observation is done, and what people are talking
through are food slots that are commonly used for communication, medication treatment, and
also sometimes psychotherapy, sometimes psychological visits
or assessments are reported to occur through these mail
slots and public spaces. So some of the misconceptions
about segregation, I think as we talk about
litigating these issues it’s important to look at
the broader public rhetoric around some of the
concerns about segregation, so one of the things is that it’s not just for dangerous prisoners, it’s not just for the difficult to manage, it is also for those who
are at risk for reasons of mental illness, developmental disabilities, age, and also former gangland affiliation special vulnerability or
general nonconformity, and also individuals who are there pending an investigation for a particular
incident or self injury, legislation does not
necessarily disaggregate between the types of prisoners who end up in administrative segregation, or even for that matter
disciplinary segregation, when we talk about vulnerable populations, and the placement of
vulnerable populations and restricting the use of segregation on vulnerable populations
it’s always unclear as to who is that vulnerable population, one of the issues that
is important to consider as we go through the legislation, as we read these decisions, and we see prohibitions
about the use of segregation on mentally ill prisoners
is the very simple question of who is mentally ill. It’s completely unclear by
CSE standards who constitutes as having mental illness, in some cases severely
disabled cognitively impaired individuals who
have an access wide disorder are very easily defined as mentally ill partly because of their allusions, partly because of their behavior, so often that most normal
people would say yes there’s something wrong
with this individual, but it’s the individuals
that hover on that cusp, of are they just disorderly, resistant, disobedient, manipulative, or are they mentally ill, a large cohort of those individuals end up being individuals who self-harm, a large proportion of those are women who are in solitary confinement, and also individuals who
are seen as resistant to institutional order, or have difficulty coping with
an institutional environment, we see in many prisoners
that have been considered to be a nuisance prisoners
and their disruptive behavior becomes things that
end up leading to segregation. Safety and security is
also a very elusive term, you will often hear the
government speaking about issues around safety and security, there is little empirical evidence to show that segregation actually
increases the safety of a facility, and that its absence would
increase in prison violence, so even though we continue to put limits on timeframes of segregation, what we aren’t talking about is not having segregation at all, and what would it look like if we had an institution without segregation, and there have been
moments in Canadian history where we have not had
segregation in public facilities, in the past a wide range
of prisoners and remarkably we’ve been able to manage
that population without the use of isolation. We also see that in general
there is no evidence that there is a deterrent
effect on the prison population in general or individuals
specifically through the use of segregation. Now I’m not going to go through
this literature in detail, it’s on the PowerPoint’s if
you choose to look at it, but down here I’m going to skip to some of the ongoing issues with
respect to segregation, so despite the long established consensus among researchers that
solitary confinement damages what we see in these legal cases and in cross-examinations that
occur is a very consistent and persistent tendency
to minimize the empirical evidence that shows that
there are negative impacts on placing people in solitary confinement, sometimes for as little as 48 hours, I find it remarkable
that this has been able to withstand time given
the pervasiveness of the evidence suggesting
not only that segregation can cause mental health issues, but also that it can cause symptoms of mental health problems, it can exacerbate mental health issues, it can minimize the effectiveness of anti psychotropic drugs, it can lead to suicide, it can lead to self injury and produce a whole host of difficulties
for individuals, but nonetheless consistently
whether it’s the time I spent with the board commission or in the Ashley Smith inquest, or in BC, you get asked
questions to say isn’t it true that this one study that
has really poorly done with lousy methodology
shows there is no evidence of mental health effects, it’s like well I don’t know,
there’s probably hundreds of other ones that tell
you that there are, lots of people are standing
here giving evidence showing you that there are, and if you just kind of hang
out in there for 48 hours with the door closed and we treat you the way we treat individuals in there, you probably would think
there was a bit of an impact. But nonetheless this persistently becomes a line of questioning, along with silly questions
like wouldn’t you agree that placing somebody in
restraints in solitary confinement is better than death. Well no I actually wouldn’t, and why wouldn’t I, not that I would report or advocate death, but rather that it’s predictable, after long periods of time
and 30 years of research, we know what’s going to happen, and we know that this is not an effective population enhancement instrument, yet it continues to be a preferred tool of population management. So continuing to have
segregation limiting it, changing, tinkering,
playing with the legislation and policy reform allows
a technique of confinement to persist that continues
to perpetuate harm. Now all that being said that not that we don’t need an oversight, and what we probably
may or may not need is necessarily more policy, because the other thing
that we have persistently seen when we look through these cases, and one of the very few
times that you actually get a glimpse into how CSE works is by working on one of these cases, or doing work on projects
where we get disclosure, is you see a litany of
reports that come out of CSE, whether they’re segregation reports, observation reports, use of force reports, situational and incident reports, all of which documenting
compliance to policy, but nonetheless somebody continues to stay in segregation for a
very long period of time, but all the boxes are ticked, and the oversight of those
reports and those pieces of evidence show that
complying with policy are very difficult to contest, so one of the problems
that I see in more policy reform more oversight that is required, more reports on showing
how you’ve done it and how you follow policy as it
also has this unintended consequence of showing compliance, and showing compliance in a
large majority of the cases, and this is where something happens which I’ve argued is right to become risk to be organizationally managed, the risk is litigation, and its reputational risk management, CSE does not want to be
seen as an institution, nor does the Ontario provincial systems and any other provinces
in the country want to be systems that are
constitutionally violating the rights of the individuals
whom they contain, but nonetheless, that is what appears to be
happening in many cases. So solutions are often revised policy, but policy remains woefully
inadequate and also leads to various parts of the
institutional risk management, there’s an historic pattern
of routine violation of policies and law, and if you haven’t read it, I would strongly suggest
going back to reading Justice Abor’s report in the
mid-1990s were she speaks about the lack of a culture
of adherence to law, and this lack of culture
of adherence to law is one that continues to be pervasive, so I’ll give you an example, the new legislation
that came here as Alison was litigating the BC case, one of the commission’s
directives was 709 which prohibits the use of administrative
segregation for those with serious mental health
or significant impairment, now if you go into that CD, there’s a clip right in to CD 843 which is titled interventions to preserve life and prevent serious bodily harm, it’s a mechanism to manage
a subset of individuals that actually have mental health issues that remain in correctional custody, it contains no time limits, it enables ongoing use
of constraints which you can see in this picture, and it also enables the use of a restraint which the Ontario correctional, or the office of correctional investigator will call use of force, but CSE only calls if the force if there’s a problem and in the
application of the restraint, these are the very same
restraints that Ashley Smith was kept in, in solitary confinement for protracted periods of time, and other prisoners are
currently being held in custody in segregation
cells much like the one above, in these types of restraints. I don’t really think that’s
providence but nonetheless. Limiting the need for
timeout is another issue, so one of the other issues that was raised is the issue around voluntary segregation, some prisoners use segregation
to escape general population, therefore we need to continue segregation, I also suggested the decision
say perhaps we need ranges, or perhaps we have a bigger
problem in general population if prisoners need to go into segregation for a time out from general population, again it’s a different but related problem of asking bigger questions
about are we perpetuating a very repressive
technique on the basis that some people might need it to feel safe in an institution where their safety ought to be assured and preserved. We also need to focus a little bit on the gateways to segregation, not just segregation itself, but some of those gateways to segregation still have constitutional
issues in my opinion, are things like security
classification which have serious issues with respect to gender and indigenous peoples, and for which we need
to pay more attention, and this would be the general
issue of risk assessment, who’s classified maximum security, who is seen as risky, who’s seen as in need of these particular types of confinement. Also access to information
is another point, a consequence perhaps unintended
or otherwise of litigation, is it allows access to
information from an institution and institutional structure where it is increasingly difficult to
get information about practice, it is very hard to find out what happens inside institutions, which makes creating an evidence base difficult in litigation, and producing affidavits,
having public records, actually helps a lot of social scientists and researchers look at
what is actually happening in these institutions, because it is sometimes the first time we have evidence that is being produced by the government which they
can’t then say is biased, because of course they produced it, however how you get it
and what you get you have to be very cautious
about how to ask the court, so for example one of the
things we couldn’t tell in the BC case is how many indigenous women are in segregation, we could tell you how
many indigenous people were in segregation, how many women were in segregation, but not how many indigenous
women are in segregation, we didn’t ask that question, so we couldn’t disseminate the data. It’s also useful to educate and build, and this is perhaps a contentious and out of the box suggestion, but I think it’s useful to
educate and build common ground with professional unions in
terms of occupational health and safety laws, staff models
and training and changes to collective agreements, it’s very interesting
when you actually speak to correctional officers about how they perceive solitary confinement, you will get this there
are dangerous people and we need to be safe
in our institutions, but there’s also issues around
these types of facilities lack of accommodation
for mentally ill people producing unsafe working conditions, all of which to the end
goal of saying we need to do something about the
conditions of confinement, we also need to look at
collective agreement, so for example on some of the
Ontario collective agreements, you will see things where people who were placed in segregation cells, still are some of the
most difficult people are there based on seniority rights, so if you have seniority
rights you don’t have to work on the unit, so you get the least
experienced person who might be part-time who’s never been
in that institution before, has no relationship with
the prisoners is now in a particular unit with individuals exhibiting problematic behavior. Conflict resolution is going to be minimal and weak at best in those
kinds of circumstances, so if you have collective agreements that structure work in a particular way, limit training, don’t adhere to best practices
in terms of training, then you are also dealing with people who are very ill equipped. So just to move quickly, actually I’m done with
that because we passed it, but just to end with this, is that even though I think these are two really important decisions, I’m not quite sure because
I’m not a lawyer what’s going to happen with them when
they get to the appeal court, hopefully they can opt to Supreme Court and somebody once and for
all actually pronounces on these particular practices, but we have to be
cautious that even if that does happen it doesn’t
mean the issue goes away, it continues to be there and persist, seeing and saying things
like this year people in segregation is a little bit of musical chairs kind of problem, so we know that the
occupancy rate in those seg cells has not changed, but we do know that what
segregation is being called changes rapidly
over time which brings me back to the first slide, which is it’s all precarious, whether it’s solitary segregation, super Max, enhanced observation, quiet time, clinical supervision or time out, it’s still the same box
and we still have people occupying those cells regardless
of what it is they call it. Thank you, we have looked like just about five minutes left, so we’re gonna open it up for questions or comments on this topic. WOMAN: I’m legal counsel
for the Native Women’s Association for Canada, and I was wondering how can
we get an intersectional section 15 analysis for gender and race, let’s say on appeal in
the BC case or in Ontario? Did people at the back hear that question? Well I’ll take a first stab at it, I mean I think the nice
thing about the BC case is that the evidence is
available on the record, and an intersectional analysis was argued in the trial court, although the trial judge
declined to engagement, so I think that does
open it up for that kind of argument to be
advanced on appeal outside the balance of what an
intervener can do on an appeal, how to convince the court
to actually go there, I don’t know, good advocacy I guess. I don’t have anything to add
to that I agree with Alison. Yeah it’s the Canadian
human rights commission is not looking at this
particular issue in terms of doing actually of
analysis of segregation and the way in which that intersects with other axes around section 15, so disability in terms
of mental health as well as indiginaity, one of the challenges
I think this is going to be raised also in the Oliver Kay case, one of the challenges
is that when you look to empirical evidence it’s
hard to show any literature that indicates differential
effects on indigenous people, because there’s not a lot of research, in fact internationally
there’s almost none, but it’s not hard to
extrapolate from principles and from other kinds of arguments of their disturbed trauma and
intergenerational violence and other issues and also
the over incarceration of individuals of indigenous individuals in solitary generally, and women in particular. I would only add that I think
every case that is about a prison policy is a case
about disproportionate impact on the indigenous people. Right, you can’t separate them. So those arguments should
be made in every case, and they appear in interesting
ways from prisoner voting, to the interest around
mother baby programs, it’s not necessarily always going to be a section 15 victory, it certainly wasn’t in trial court BC, but at least those issues were present and they did impact the
analysis in some ways. Any more questions? MAN: I’ll just yell at you, so I was in a personal
crusade about the oversight and the difference how
the oversight was treated in the BC and Ontario decisions, and am wondering can you
point to a particular expert that was called for BC, who may have skills for that case, and am wondering what
interveners or coordination among the interested parties played in kind of shaping that analysis and shaping that part of the story? I’ll leave that to Alison. I’m not sure, I think I agree with what Lisa said, which was that it was really
Professor Jackson’s evidence, if you’ve met him, he is an extremely
articulate charming person who spent a couple of
days on the stand being cross-examined all about
his expert report which was basically look back
from the beginning of the history of the
penitentiaries in Canada, and just every single
report and every single time a court or anybody
called for an independent review on what happened with that, and he was so impactful for the court, all we could do was say it’s
what Professor Jackson said, I submitted a report to
you and it’s very long, and try to highlight some points from it, did the interveners pick up on that, I’m not sure, I think Professor Jackson
himself was the leading light on the issue. I can tell you that I bet
you anything that even The the government lawyers at the end of his evidence regretted seeing him leave that court room, because the man is wonderful to listen to, he is hugely knowledgeable, he’s hugely respectful
of everyone who works in the prison system
along with the inmates, there is one article
he wrote, I think it’s called something like,
Independent Adjudication as the Litmus Test for Prison Legitimacy, and the documents the history of the calls for independent
adjudication and how CSC has resisted it for years and years, and there’s been pilots and they failed, the amount that CSC
resists having someone who is not one of their own
employees check their decisions, even if there were no time limits, they still don’t want independent review, that tells you something, why do they not want it so much, they have independent oversight of their disciplinary court system, and evidence to show that two percent of inmates in segregation
went through that system, so they don’t stand who makes the decision whether you go to disciplinary or CSC, so they don’t send people
through disciplinary because they don’t want that
independent oversight plus the other rights associated
with the disciplinary regime, so that article, it’s a
mercifully short piece which is unusual for Michael. (audience laughs) He has a lot to say. Looks like we’re at the end
of our session so please join me in thanking these amazing guests. (audience applauds) Thank you very much now we
don’t have much time between.

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