SJD student and Trudeau Scholar Kyle Kirkup has written a commentary in the National Post examining how solitary confinement is described and used in Canadian prisons, and why a constitutional challenge has been launched against this practice ("Kyle Kirkup on solitary confinement: An abuse by any other name," March 31, 2015).
Read the full commentary on the National Post website, or below.
Kyle Kirkup on solitary confinement: An abuse by any other name
By Kyle Kirkup
March 31, 2015
Solitary confinement is under intense scrutiny in prisons across Canada. Ontario, for example, announced last week that it would review the practice in the province’s jails. In January, the B.C. Civil Liberties Association and the John Howard Society launched a constitutional challenge to the use or, more accurately, abuse of solitary confinement in Canada’s federal prisons. Among other things, they argue that solitary confinement constitutes cruel and unusual punishment. The Attorney General of Canada recently responded to the lawsuit with what can only be described as a deeply troubling claim: There is no such thing as solitary confinement in Canada.
The Attorney General wants to call placing inmates in total isolation for prolonged periods of time — up to 23 hours per day, often for weeks or months on end — the much more benign sounding “administrative segregation.” In materials filed in the B.C. Supreme Court, the Attorney General argued that administrative segregation is “different from and not analogous to the concept of solitary confinement referred to in many foreign jurisdictions and should not be confused with it.”
Solitary confinement, it seems, comes with too much baggage.
The United Nations Special Rapporteur has identified the prolonged use of solitary confinement as a form of torture. There is a large body of empirical scholarship documenting the wide-ranging human-rights abuses associated with the practice, which causes everything from psychosis to hallucinations to suicide. Indeed, nearly half of all suicides in Canadian prisons occur in solitary confinement, with the overall prison suicide rate being seven times that of the general public.
Given these stark realities, the Attorney General wants to do everything in its power to avoid calling the prolonged isolation of people in federal prisons solitary confinement. Of course, prison administrators in Canada and other jurisdictions have a long history of attempting to mask the violence of solitary confinement using more benevolent-sounding terms such as “special housing unit” or “mental-health unit.”
The Attorney General is dealing in semantics. All federal prisons in Canada are regulated by the Corrections and Conditional Release Act, which Parliament passed in 1992. The Act consolidates other pieces of legislation establishing the rules governing federal prisons, along with Canada’s parole system. The legislation never expressly uses the term solitary confinement.
Rather, the current federal framework uses two different terms to describe the prolonged isolation of people in prison — disciplinary segregation and administrative segregation.
Disciplinary segregation is used when inmates have broken specific prison rules. There are strict procedural guarantees governing the practice of disciplinary segregation, including the imposition of time limits and independent oversight mechanisms.
Administrative segregation is usually much worse for people in prison than disciplinary segregation in large part because it can go on indefinitely. The practice is supposed to be used to ensure the “safety and security” of the prison as a whole. While the current approach serves the interests of prison administrators, it undermines inmates’ basic human rights. Prison wardens have discretion to use administrative segregation against anyone they deem to be too complicated or risky to be placed in general population, but inmates are afforded fewer procedural guarantees.
In the federal prison system, one out of every four people has spent time in solitary confinement (or administrative segregation or, for that matter, any other term you want to use to describe the cruel and unusual practice of placing people in total isolation for up to 23 hours a day without knowing when or how they will be released).
Almost 20 years ago, Justice Louise Arbour — who would later be appointed a justice of the Supreme Court of Canada and the United Nations High Commissioner for Human Rights — recommended that the federal government impose strict time limits on the isolation of people in prison. Last year, the Correctional Investigator called on the federal government to prohibit solitary confinement of those with serious mental-health issues. The deaths of Ashley Smith and Edward Showshoe sparked calls for more robust prison oversight mechanisms.
The federal government’s chronic failure to respond to these recommendations has forced the B.C. Civil Liberties Association and the John Howard Society to launch a constitutional challenge to current practices.
It is trite to say that, to respond to a problem, you first have to acknowledge that you have one. If the Attorney General’s response — that there is simply no such thing as solitary confinement in our country — is any indication, we may be years away from redressing the daily human-rights abuses experienced by people in Canada’s federal prison system.
