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| Catherine Latimer |
In response to rulings from the British Columbia and Ontario Courts of Appeal that found our previous solitary confinement regime to have infringed ss.7 and 12 of the Charter, Bill C-83 was created to introduce a new system consistent with the courts’ decisions. Among these findings were the need to conduct independent reviews within five days of an individual’s placement in isolated confinement, capping solitary confinement to 15 consecutive days and an increasing recognition of the damage solitary confinement causes to mental health and behaviour.
Much credit goes to minister Ralph Goodale, who instituted the SIU-IAP to allay concerns that Bill C-83 would fail to prevent the very same Charter infringements that prompted the legislative reforms. The SIU-IAP’s final report, released publicly on Jan. 27, was the 12th in a series of meticulously researched studies revealing a litany of problems in the operationalization of the SIUs. Some of these issues could be dismissed as the transient growing pains of transformation, had it not been for the panel’s damning finding that improvements have not been made over the years. The panel found that SIUs must be understood in the broader context of the prison estate given its impacts, such as isolated confinement taking place outside of the more closely watched SIUs. The only fair conclusion to be drawn from these reports is that SIUs are failing to deliver their legislative intent, and are not being administered consistently with the law. Above all, the panel suggests that the SIUs have failed to correct the Charter violations that prompted the legislative reform.
This last report should have been understood as the final nail in the coffin of a failed effort. Instead, the government’s response proposes to keep the carcass on life support despite the harms it is inflicting on individuals, the prison system as a whole and ultimately our communities who will be receiving people whose mental well-being and behaviour is made worse by their experience in isolated confinement. It is time to own up to the fact that there are serious problems both in terms of how Correctional Service of Canada (CSC) is administering the legislation and with the legislation itself that is so lax that Charter rights can be violated.
Acquiescing to a failing regime is not acceptable. The minister of Public Safety should issue an immediate ministerial direction to CSC that it must comply with the law and the Charter and understand solitary confinement as 22 hours in a cell without meaningful human contact as defined by the United Nations. He should ask the Correctional Investigator to identify all areas in the prisons where prisoners are held in isolation. He should also remind Parliament of its statutory obligation to conduct a comprehensive review of Bill C-83. The minister of Justice has a statutory obligation to see that public administration is consistent with the law that should be triggered by the SIU-IAP finding of legal non-compliance.
Canadians will forgive a failed legislative effort if accompanied by a commitment to fix the failure. Canadians, however, are less likely to forgive the erosion of the Rule of Law and Charter rights resulting from continuing a regime known to be inconsistent with the law and the Charter.
Catherine Latimer is the executive director of the John Howard Society of Canada.
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