Thursday, November 22, 2018

Bill C-83: The End of the Line for Segregation in Federal Penitentiaries in Canada?

by Justin Piché (Associate Professor, Criminology, University of Ottawa)

To be presented at "The Future of Solitary Confinement in Ontario and Canada: A Panel Discussion"

CRX C020 / Learning Crossroads
University of Ottawa
22 November 2018
4:00pm - 5:30pm


On October 16th, the federal government tabled Bill C-83 promising, among other things, to “eliminate segregation and establish Structured Intervention Units (SIUs) which would allow offenders to be separated from the mainstream inmate population as required while maintaining their access to rehabilitative programming, interventions and mental healthcare”.

On that same day, Conservative Public Safety Critic Pierre Paul-Hus declared in a CBC News story by journalist Kathleen Harris that segregation should remain a tool for CSC staff as it's “a common and legitimate safety measure”. Apparently not in the business of politicizing matters of criminalization and punishment, Paul-Hus also stated, and I quote, “It is clear from the tabling of this legislation that the Trudeau Liberals are prioritizing the rights of Canada's most violent and dangerous criminals ahead of the rights of victims… Instead of changing the Corrections and Conditional Release Act to make sure killers like Terri-Lynn McClintic are kept behind bars, Justin Trudeau is softening the law to make prison time easier for criminals…”, which demonstrates “shocking indifference for victims and a disturbing compassion for criminals”. More than a decade after the preventable death of Ashley Smith in Grand Valley Institution, it seems some Conservatives still can't bring themselves to recognize that those who experience the brutalities of solitary confinement documented by neuroscientistsother scholars, government watchdogs and prisoners are victims of violence.

Within a week, Jason Godin, the national president of the Union of Canadian Correctional Officers, also weighed-in during an interview with Vancouver Sun reporter Glenda Luymes, declaring “When this goes through, the bloodbath will start”. He added that CSC staff require “sanctions and tools to keep order inside the walls” and that “I highly doubt the resources will be there to do it. We’re not angry at the therapeutic part, but the buck stops at safety and security”.

Based on the statements I just read, it's clear that both supporters and opponents of Bill C-83 need to read the contents of the proposed law more closely. In the next few minutes, I'll point to some of the potential gains and pitfalls arising from this bill should it become law as presently written. My reading is that if passed as-is, the legislation will fall short of meeting one of its purported aims, which is to “eliminate the use of administrative and disciplinary segregation” in the federal penitentiary system.


So let’s start with the potential gains. Having prisoners who've been removed from general population get access to human contact, as well as programs and services (under section 32b) is a step in the right direction. So too is having a “minimum of four hours a day” outside their cells (under section 36a) and interactions with people for “a minimum of two hours a day” (under section 36b). If implemented in practice, those imprisoned in “structured living units” wouldn't, according to the 22-hour a day “without meaningful human contact” threshold outlined in the Mandela Rule 44, be in solitary confinement. Mandating plans to prepare prisoners “for reintegration into the mainstream inmate population” (under section also seems sensible to me. However, such provisions shouldn't be the end of the line.


This legislation leaves many openings for the continued use of segregation even if it's renamed something else.

For instance, in cases where prisoners either don't choose to make use of the opportunities presented to them (under section 37.1a), are we not describing a circumstance that would lead to voluntary segregation? There are also circumstances where CSC can deny such opportunities to prisoners who want to avail themselves of them should a risk to the safety of others and/or institutional security be identified (under section 37.1b-c). Would this not lead to involuntary segregation?

That CSC would record these instances (under section 37.1.2), while monitoring the health of prisoners on a daily basis including through a visit by a CSC or CSC-contracted health care professional (under section 37.1.1) seems to run counter to what many have been calling for – external oversight. The same goes for the provisions putting the review of placements in, and determination of releases from, SIU’s (under section 37.3.1a-e) in the hands of warden's up to the 30-day mark, at which point the ball moves into the Commissioner’s hands (under section 37.4).

Has the government decided not to learn lessons from the past, including those outlined in Arbour (1996), recent coroner’s inquests, and elsewhere? Does the government really think CSC can oversee itself and follow the laws that govern its operations, particularly with respect to the treatment of prisoners not being held in general population? What policies were in place when Ashley Smith tied a ligature around her neck and died while CSC staff watched? Were they following policy to the letter? No. And we should trust them to do so now without external oversight? Again, no.

Furthermore, should this bill pass CSC can choose whether or not to make the opportunities available in SIUs to those awaiting transfers to such units for up to 5 days based on whether “circumstances permit” (under section 37.6.1). Is this not another potential rabbit hole for prisoners to fall into ‘the hole’, albeit for a short period of time?

All this to say, I think the government can say it's working towards ending segregation, but as Senator Kim Pate has noted the legislation as presently worded will not accomplish the task of ending segregation other than in name. Perhaps the federal government, along with the opponents of the legislation, should be a bit more modest about what the bill can achieve.

Another thing that struck me as I was reading Bill C-83 is that the commitment to reintroducing the “least restrictive” measures as a pillar of federal prisoner placement outlined in Bill C-56 has disappeared. Instead, as it pertains to SIUs, we find language such as prisoners can be kept in such units “only if the Commissioner is satisfied that there is no reasonable alternative” (under section 34).

What determines whether there is a "reasonable alternative" out there? The availability of government resources? The availability of SIU spaces? Could this be a precursor for justifying new federal penitentiary infrastructure to make sure “reasonable alternatives” exist? We know that in 2017 Parkin Architects was awarded a contract to, and I quote, “document both operational and physical requirements needed to provide effective and humane maximum security incarceration at… five federal correctional institutions across Canada, including: Dorchester Penitentiary (New Brunswick), Millhaven Institution (Ontario), Regional Psychiatric Centre and Saskatchewan Penitentiary (Saskatchewan), and Archambault Penitentiary (Quebec)”. Did this analysis recommend the construction of new and bigger units or penitentiaries across Canada in the name of ‘humanizing’ the infliction of pain through the deprivation of liberty? Did such proposals include SIUs?

As I read Bill C-83, I also wondered where the time caps from Bill C-56 went. Section 33 of the new legislation notes, and I quote, “An inmate’s confinement in a structured intervention unit is to end as soon as possible”. This seems pretty vague to me and without targets with respect to consecutive days or total days that can be served in SIUs in a given year monitored via external oversight, am I an alarmist to worry that “segregation lite”, to use Correctional Investigator Dr. Ivan Zinger’s words, could be indefinite in the same way that indefinite segregation exists today?

On paper, SIUs appear to be modestly more humane than the segregation regime we have now. However, if “The Commissioner may designate a penitentiary or any area in a penitentiary to be a structured intervention unit” (under section 31), without any ceiling about how many spaces can be designated as such, does this legislation not have the potential to funnel many prisoners who would not be segregated today into SIUs, thus extending the net of people living under more restrictive conditions inside the federal penitentiary system?


If this law is to proceed ahead and actually serve as a starting point towards goal of abolishing segregation in Canada's federal penitentiaries, it seems that in the short-term what's needed is to: (a) eliminate the loopholes for denying prisoners' access to human contact, programs and services; (b) put in place external oversight for placements in and releases from SIUs; (c) introduce time caps for consecutive days and cumulative days in a given year one can spend in SIUs; and (d) put in place a system-wide ceiling for SIU placements that is on par with the number of prisoners in segregation today, along with lowering targets every year as we work towards finding ways to end the isolation to the degree that's possible. CSC’s Commissioner shouldn't have the power to designate more SIU spaces. This is a recipe for abuse.


In closing, there are thousands upon thousands of pages documenting how penitentiary and government officials, pre- and post-Confederation, have tried and failed to fix the system. For every gain that's been made in the pursuit of human rights behind bars, "carceral clawbacks" have followed in the name of institutional order and security, leading to the next round of failures and reforms. Rinse. Repeat.

Ultimately, if we want to end solitary confinement in Canada we need to look beyond Bill C-83 and demand more. First, we have to stop what hasn't worked. We need to demand a penitentiary construction moratorium and hold a national conversation into how to best enhance well-being and safety in our communities. We need to demand more measures to prevent harm where possible, starting with investments to meet the basic needs of all people living in this country. We need diversion measures with an emphasis on building transformative justice capacity to enhance accountability and meet the needs of affected parties when victimization occurs. We also need to demand decarceration measures to return many prisoners to the community who can live safely amongst us now. As we work towards a minimal use of imprisonment, we will have more resources to address the needs of those who remain behind bars until we put in place the necessary alternatives to carceral violence in our communities.

Thank you for your time. I look forward to hearing what others in the room have to contribute.