"Prisons and jails have rules about
everything. There are rules governing every moment a person spends in custody
and every movement that person makes. There are rules about everything staff
does as well. In spite of this, and with apologies to Justice Louise Arbour,
although rules are everywhere, the rule of law is too often absent." –
Howard Sapers, the Independent Review of Ontario Corrections
“This is a glaring example of a broken system.”
– ORC Isadore Day, on Adam Capay’s solitary confinement
Background
The correctional system in
Ontario, more specifically the use of segregation in prisons, is currently in a
state of crisis. In the past twelve months there have been several high-profile
events that drew attention to the flawed use of segregation in Ontario, and
indeed across Canada. The Ontario Human Rights Commission called for an end to
the use of solitary confinement in Ontario. In November 2016, McLean’s
published a story on Adam Capay’s case, where a young man from Lac Seul First
Nation had served 1,560 days in
segregation, using his story to shine a light on the practices of segregation
in the province. The resulting public uproar coincided with an internal review
of the provincial use of segregation in prisons.
The Ontario Ministry of Community Safety and Correctional Services (MCSCS) has in response appointed Howard Sapers to conduct a review of the use of segregation in Ontario prisons as stage one of a three phase reform plan.[1] Sapers has worked in the field of corrections for over 40 years, and has served as the Correctional Investigator at the federal level. He argued that overuse of segregation is symptomatic of wider systematic issues to be addressed in the second report. This report on segregation was done on a quick timeline so that it could quickly respond to these concerns. Sapers had 60 days to complete his report, which was released in March 2017. This was a remarkably fast timeline.
When a prisoner is in
segregation, they hold all the rights protected in Canadian and international
human rights legislation except the freedom of movement.
The Canadian Charter of Rights and the Ontario Human Rights Code both place limits on the use of segregation. They both also protect from discrimination based on “prohibited grounds for discrimination” – and Indigenous identity is a protected grounds for discrimination. International law is even clearer: isolation beyond 15 days can constitute torture. This is encoded in the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and most applicably the Standard Minimum Rules for the Treatment of Prisoners (aka the Mandela Rules). Canada broadly and Ontario specifically has failed to live up to these rules.
Segregation in Ontario: Independent Review of Ontario Corrections
This document provided an overview of the historical, legal, and
policy apparatus surrounding the use of segregation, and 59 recommendations for
the reform of segregation use in Ontario prisons. Sapers took pains to ensure
that the recommendations were considered holistically, as he wrote that the
problems with segregation were systematic and therefore could not be addressed
on a piecemeal basis.
Highlights from the recommendations include:
- There is a lack of legislative direction (Sapers calls the legislation that directs the prison system “skeletal”), while the policy framework has become bloated, unclear, overwhelming, sometimes contradictory, and nearly always confusing.
- As a consequence of this policy quagmire, basic questions remain unanswered. For example, it is unclear what “segregation” even means. The clearest direction is that it is a designated place, meaning that one could be in conditions akin to segregation outside of the designated area and therefore would not be subject to standard reviews. As a result segregation and the necessary conditions of confinement are unclear, under-inclusive, overly restrictive, and inconsistent provincially.
- Segregation is improperly used and impacts vulnerable populations disproportionately. Specifically to Indigenous peoples, they are overrepresented in segregation at close to the same rates that they are overrepresented in prisons broadly.
- Medical standards, especially relating to mental health, are problematic for several reasons. First is that there are two standards competing with each other (the ministry's Institutional Services Policy and Procedures Manual and the Health Care Services Policy and Procedures Manual), causing confusion.
- There are insufficient reviews and accountability, to the point that over half of the 5 day and 30 day reports (the standard reporting periods for inmates in segregation) are not completed to the standards required.
- Human Rights are not given full protection, particularly for prisoners with mental health issues.
- Staffing remains a problem. In 2009-2012 there was a hiring freeze, and in 2016 the province remedied this with 2,000 new correctional workers. This has created a situation of simultaneous staffing shortfalls and organizational challenges to train new officers.
- Infrastructure shortfalls, particularly in old institutions built on an outdated model of corrections (over 40 years old) force administrations to overuse segregation.
- Data collection and statistical analysis uses an outdated paper-based system which fails to use the data that is collected.
- Policies have changed in 2015 to address fundamental problems, but they have been changed without the training or resources necessary to implement. As a result, there are good policies that have not been operationalized.
Based on these ten areas of key findings, Sapers made 59
recommendations. Those that directly and specifically impact First Nations
include: that segregation placements to include consideration of Gladue reports
(recommendation 3.1), that the interdisciplinary Segregation Review Committee
meetings include correctional officer representation and Native Inmate Liaison
Officer’s input (recommendation 5.2), that the Minister articulate a renewed
vision for the Community Advisory Boards, including mandating Indigenous
representation (recommendation 5.8), that the Native Inmate Liaison Officer
role be expanded to allow for access to all inmates (recommendation 7.8), that
the Ministry develop a program for the North Bay and Sudbury Jails based upon a
one-facility, two-campus vision, allowing for community engagement and
culturally-appropriate program delivery (recommendation 8.7), and the Ministry
develop a standard script to collect accurate data on race and ethnic origin of
inmates in segregation. (recommendation 9.2).
Analysis of the Independent Review of Ontario Corrections
As an overview of the system as a whole, and an identification of
the underlying factors, this is a superb document. Sapers analyzed the use of
segregation from the policy and legislative level down to the local variance,
making recommendations from top to bottom. This is an excellent blueprint for
systemic change in the use of segregation.
That said, this report as it relates to First Nations is in many
ways problematic. Problems in the correctional system – and the use of
segregation is clearly a problem – impact First Nation inmates
disproportionately.[2] Howard Sapers knows this. In 2012 he wrote
a report on the position of Indigenous peoples within federal correctional
legislation.[3] However,
this review was based largely on the literature because of the 60 day timeline
for completion, along with targeted consultation with key groups. There has
been little direct research on Indigenous peoples in solitary,[4] so
this did not factor heavily into the final report. Sapers himself also
acknowledged that data collection, especially racial or ethnic data, is uneven,
imprecise, and problematic. In addition, there are no Indigenous organizations
directly working directly and exclusively on behalf of Indigenous peoples in
solitary, so Sapers did not consult with ANY First Nations or Indigenous
organizations in writing the report.
The lack of Indigenous consultation led to gaps in the final
report, both in specific unanswered questions and fundamental, high-level
issues particular to First Nations. What impact does Segregation have on First
Nation spiritual or cultural practice for prisoners? Are there culturally
appropriate alternatives to explore? Are First Nations organizations able to
work with prisons to alleviate the problems facing prisoners in segregation? In
fact, when discussing the case of Adam Capay, the fact that he is a First
Nations young man did not factor into Sapers’ analysis.
There are more fundamental issues at stake, though. Ontario's
prison system is rooted in historical prison development in the western world.
Therefore, the system fundamentally differs from Indigenous legal mechanisms.
According to a 2014 discussion paper on a proposed healing lodge, Indigenous
justice is based on a holistic, Indigenous worldview. It continues, "The holistic philosophy is a circle of justice
that connects everyone involved with a problem or conflict on a continuum, with
everyone focused on the same centre. The centre of the circle represents the
underlying issues that need to be resolved to attain peace and harmony for the
individuals and the community." An analysis of Haudenosaunee, Lenape,
Annishinabe, and Mushkegowuk legal principles showed the varied ways that First
Nations built their legal systems around a holistic, community-driven
worldview.
By contrast, the prison system is fundamentally based on viewing
the individual as the fundamental moral unit. In other words, while Indigenous
approaches to justice work to heal the entire community, for the Ontario
justice system the goal has historically been to "correct" the
individual convict. When viewing Ontario's use of segregation against this
framework, and with an awareness of the historical trauma that is the legacy of
residential schools and assimilationist policies, the particular impacts of
segregation on First Nation prisoners is an obvious issue that needs to be
addressed. While the report itself is a thorough analysis of the problems
facing all prisoners in segregation, that the impact of First Nations was not
seriously considered is a glaring omission.
Next Steps
The problems inherent with the Independent Review on Solitary
Confinement are the result of a short timeline and the lack of First Nation
engagement in the study of the prison system in Ontario. Chiefs of Ontario, the
PTOs, and First Nation organizations working in prisons need to engage with
this process moving forwards to ensure that these concerns are taken into
consideration as the system is reviewed.
Chiefs of Ontario has several resolutions that will inform next
steps.
Resolution
05-08 initiated a Justice and Correctional Steering Committee. Resolution 08-21
directed the Chiefs of Ontario to continue to reinforce concerns over the
Ontario Aboriginal Justice Strategy to MAG and other Ministries, and that COO
coordinate a Justice Policy Forum.
Resolution
10-13 established an ad-hoc Justice and Corrections Leadership Roundtable with
representation from the Political Confederacy and Ministers from the Ministry
of the Attorney General, Ministry of Community Safety and Correctional
Services, and the Ministry of Children and Youth Service. Specific issues were
identified for this roundtable, including but not limited to corrections. This
falls under the mandate of that roundtable.
Finally,
resolution 12-09 established a Chiefs Committee on Justice, which is mandated
to advocate for First Nations in policing, Gladue implementation.
COO is currently working with MCSCS as the review of the penal
system in Ontario continues, working within the limits imposed by these
resolutions.
Chiefs of Ontario can also work within the boundaries identified
by The Journey Together to address the problems of solitary
confinement. Specifically, one of the pillars of The Journey Together is
creating a cultural relevant and responsive justice system – the use of
segregation is perhaps the most egregious departure from this aspiration. One
of the initiatives under this umbrella is creating cultural supports within the
correctional system (in partnership with MCSCS). There are working groups in
July and August with Native Inmate Liaison Officers, Indigenous Health Centres,
and Community Corrections. COO will ensure that issues of segregation makes it
on the agenda for these working group meetings – either to assist prisoners in
segregation or create culturally appropriate alternatives.
Resources
[1] The
three stages of the reform are:
- To provide a report with advice and recommendations on immediate steps that can be taken with respect to the use of segregation.
- To provide a second report on further segregation reform as well as reform of Ontario adult corrections more broadly. This is to inform a Government Action Plan for release in 2017, which will include a phased implementation plan.
- To work with the ministry on developing a phased implementation plan.
[2] It
is already well known that Indigenous peoples are overrepresented in prisons is
by now a well-known fact. While Indigenous peoples make up roughly 2% of the
Ontario population, in 2016 Indigenous peoples made up at least 14% of the
inmate population.
[3] Sapers,
H. (2012b). Spirit Matters: Aboriginal People and the Corrections and
Conditional Release Act. Ottawa: The Office of the Correctional
Investigator of Canada.
[4] The
work of UBC legal scholar Michael Jackson, who wrote a book titled Prisoners
of Isolation on the subject in 1984, is the exception.on the subject in
1984, is the exception.
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