A recent lawsuit is challenging the use of solitary confinement in our prison system on the grounds that it violates Section 12 of the Canadian Charter of Rights and Freedoms, which states “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” The John Howard Society of Canada and the B.C. Civil Liberties Association allege that the use of prison segregation is both unconstitutional and discriminatory against mentally ill and aboriginal prisoners, as these populations are over-represented among those in segregation.This does not refer to disciplinary segregation, which occurs with a violation of prison rules and can be considered part of the checks and balances one might expect. Rather, it refers to administrative segregation, which does not allow for legal counsel, disciplinary hearings, time limits, external reviews, etc. According to this article, which makes reference to the Office of the Correctional Investigator’s 2011-2012 annual report, “close to one-third of reported self-injury incidents (in federal prisons) occurred in segregation units”.
In 2011, the United Nations Special Rapporteur on Torture, Juan Mendéz named solitary confinement as a practice that can amount to torture and argued to the UN General Assembly’s committee on social, humanitarian and cultural affairs that it should be banned completely as a punishment technique, as reference was made to areas of noted use, including Guantanamo Bay, Argentina, China and Kazakhstan. According to this article, “about 20 percent of inmates last year were segregated for 120 continuous days,” meaning that long-term segregation is increasing in Canada. This is particularly problematic as this practice is disproportionately applied to aboriginal prisoners and inmates with mental health concerns, thereby constituting discrimination. From a mental health perspective, healthy socialization, behavioural activation, sleep, diet, and exercise are encouraged regularly for optimum wellness, all of which, are unlikely to be provided in solitary confinement. A lack of these supports adversely affects the outcomes of inmates as mental health is likely to deteriorate under these conditions, contributing to self harm and even suicide. Even if inmates survive their sentence despite this practice, mental health issues may pose challenges to re-integration into society following release back into their communities. This vicious cycle of dysfunction necessitates change to avoid tragic deaths like Ashley Smith, Kinew James, Edward Showshoe, Kyle Darren Tombaught, Gerald Joseph Cayer, Warren Robert Allen, etc.
There is substantial agreement that solitary confinement should not be applied to individuals with severe or acute mental illness, and in those extenuating circumstances wherein administrative segregation is absolutely necessary, it should only be done with greater procedural protections for inmates in Canada’s prison system, including external oversight, access to legal counsel, etc. Having considered this complex issue, barriers to the elimination of this practice easily include funding, staffing, inadequate appropriate training, etc, which is why segregation cells may be seen as a necessary part of effectively operating a correctional facility, but should be used with absolute discretion for inmates who cannot reside in a general population area. It may even be considered a humane practice if used for the safety of an inmate, for instance, but should include offering such services as intensive mental health treatment, as well as adequate time outside. Unfortunately, since many of the mental health positions within Canada’s prison system remain vacant, this contributes to the challenge of appropriate use of solitary confinement as a last resort with supportive mental health intervention. Hopefully this lawsuit will contribute to addressing the issue of Canada’s overcrowded, overburdened, understaffed prison system towards the ultimate goal of rehabilitation, through appropriate policy and procedural changes for inmates.
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