Solitary Confinement - LawNow Magazine

Solitary Confinement

cell blockOn July 17, 2015, Globe and Mail reporter Sean Fine wrote an article about Christopher Brazeau, a 34-year-old prisoner at Edmonton Institution, who is currently serving a 12-year prison sentence. Brazeau became the focus of media attention this past summer for being at the centre of a class-action lawsuit that “alleges Canada’s use of solitary confinement and lack of timely access to prescription drugs violate the rights of the mentally ill.” According to Brazeau, he has been held in solitary confinement for 23 hours a day, going significant portions of time without needed prescription medications. According to the article, he has been subjected to such conditions for upwards of a year at a time.

…Prime Minister Justin Trudeau has directed Justice Minister Jody Wilson-Raybould to implement recommendations “that would ban long-term solitary confinement for federal inmates…”Unfortunately, this is not the first court case brought forward against the use of solitary confinement in Canadian prisons. Some scholars such as Lisa Kerr have written extensively on the use of the Management Protocol. She discusses the Protocol in her article “The Origins of Unlawful Prison Policies” published in the Canadian Journal of Human Rights in 2015. The Protocol is a penal program that allows prisons to lock inmates who administrators consider threats to safety in their cells for up to 23 hours a day, for a minimum of six  months at a time. Kerr notes that prior to the emergence of the Protocol, substantive restrictions that governed the use of solitary confinement as a form of punishment were set out in the Corrections and Conditional Release Act (CCRA) and the Correctional and Conditional Release Regulations. These instruments were very clear on the procedural protections that apply to involuntary placements into solitary confinement, such as the right to “regular, periodic reviews” designed to assess whether solitary confinement was still required to maintain prisoner safety. The instruments called for “least restrictive measures” and indicated that “necessary and proportionate” punishment should be used. This greatly enhanced fair treatment towards inmates, because it seemed that solitary confinement could only be ordered in cases where there were no reasonable alternatives.

…Worm served over three and a half years in solitary confinement, despite any indication that she continued to pose risk to other prisoners shortly after being placed on the Protocol.According to Kerr, the emergence of the Protocol introduced “a new method for managing ‘high risk’ women” in Canada and hugely expanded previous limits on the use of solitary confinement. Rather than regular reviews that allowed inmates to move out of solitary confinement as soon as the practice was no longer needed, the Protocol imposed “three ‘steps’ of graduated restrictions” that an inmate had to successfully move through in order to be returned to maximum security. Decisions regarding when an inmate had successfully completed a step were “made on a purely discretionary and ad hoc basis,” and there were no “specific or achievable criteria required for release” indicated.

Eventually, the Protocol became the basis of a claim advanced by the British Columbia Civil Liberties Association on behalf of Bobbylee Worm, which settled before moving to trial. Worm was a prisoner at the Fraser Valley Institution, ordered to serve a 6-year sentence. Despite being a first time offender, she was placed on the Protocol following several fights with other prisoners, which confined her to a cell, deprived of meaningful human contact for 23 hours a day. While the Correctional Service of Canada indicates that it may take a “minimum of 6 months” to move through the program, Worm served over three and a half years in solitary confinement, despite any indication that she continued to pose risk to other prisoners shortly after being placed on the Protocol. This extended time in segregation prevented her from accessing the “proper monitoring and ongoing treatment” required to properly manage her “serious history of trauma and abuse,” which led to severe psychological repercussions that were worsened by being placed in isolation.

Rather than regular reviews that allowed inmates to move out of solitary confinement as soon as the practice was no longer needed, the Protocol imposed “three ‘steps’ of graduated restrictions”…The program has since been terminated and at this point, it is not possible to predict the results of the Worm case should it have been raised in court. However, like Mr. Brazeau’s court challenge, the Worm case has certainly brought solitary confinement forward as a critical issue for the general public to think about and has since captured the Canadian government’s attention.

Just this past month, the Globe and Mail wrote that Prime Minister Justin Trudeau has directed Justice Minister Jody Wilson-Raybould to implement recommendations “that would ban long-term solitary confinement for federal inmates and steer all vulnerable prisoners from the regression form of incarceration.” Of course, we have yet to see how the current government may address the issue of solitary confinement in prisons or what implementing such recommendations would look like, but it seems safe to say that changes to the excessive use of solitary confinement in federal prisons would be a welcome relief to the 1,800 Canadian inmates held in extended isolation every given day.

Authors:

Juliana Ho
Juliana Ho is a 2nd year student at the University of Alberta Law School and is a volunteer with Pro Bono Students Canada. (2014)
 


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