Submission of the Ontario Human Rights Commission to the Ministry of the Solicitor General on the proposed amendments to the segregation provisions in Regulation 778 under the Ministry of Correctional Services Act

 

Introduction

On August 26, 2019, Ontario’s Ministry of the Solicitor General (the Ministry) announced proposed amendments to Regulation 778 under the Ministry of Correctional Services Act. The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the amendments related to segregation.

Overall, the OHRC is disappointed with the proposed amendments, which do nothing to substantively address serious issues with Ontario’s continued abuse of segregation. Despite the findings of the Independent Review of Ontario Corrections, the Ombudsman of Ontario and the courts, the Ministry has not moved forward with urgent and necessary legislative protections. Instead, the Ministry is putting forward amendments that align with requirements that already exist in Ontario’s correctional system and do little to address practices that have been found to breach the Ontario Human Rights Code (Code) and the Canadian Charter of Rights and Freedoms (Charter).

Regulation 778 governs the operation of Ontario’s adult correctional institutions, including the use of segregation in these facilities. The Ministry is proposing the following two amendments relating to segregation:

Segregation review process: Regulation 778 currently requires that a superintendent review segregation placements at least every five days. The proposed amendment, described as creating an “independent review process,” will require the Assistant Deputy Minister of Institutional Services rather than the superintendent to conduct these reviews.

15-day limit on disciplinary segregation: Regulation 778 currently allows prisoners to be placed in disciplinary segregation for up to 30 continuous days. The proposed amendment will reduce this maximum to 15 days to align with operational policy that already imposes a 15-day cap on disciplinary segregation.[1]

The Ministry of Correctional Services Act and Regulation 778 are almost 30 years old and were developed before the negative effects of segregation were well known. Today, there is widespread recognition of the serious and lasting harm caused by segregation. Every Canadian court that has considered this issue in recent years has found that the practice is harmful. Minor amendments to an outdated Regulation will not address the harm being caused to prisoners under the current segregation system. As illustrated in painstaking detail in R v Capay, segregation can cause profound and lasting harm.[2] Addressing this harm requires real action, not half measures.

Instead, the proposed amendments are designed to provide the absolute minimum protection that the Ministry could possibly argue is constitutionally compliant. Yet even with these changes, Ontario’s segregation practices fall short of the constitutional standards that have been established by Canadian courts. Instead of this marginal, technical and legally questionable approach, we urge the Ministry to create a regime that acknowledges and aims to address the serious harm caused by segregation with robust and clear protections governing its use.

The OHRC renews its February 2019 call on the Ministry to commit to an action plan to end segregation in Ontario, and makes the following recommendations in response to the proposed amendments:

1. Clarify whether the government intends to proclaim the Correctional Services and Reintegration Act, which was passed by the Legislature in 2018, and includes requirements for effective segregation oversight and time limits, and prohibits the segregation of particular vulnerable groups.

2. Take immediate steps to establish an external and independent review process for segregation decisions, including judicial oversight.

3. Strictly prohibit indefinite segregation by:
   
   1. Imposing a 15-day cap on all segregation placements, and
   2. Restricting the use of segregation to 60 aggregate days in a calendar year.

4. Strictly prohibit the segregation of prisoners who:
   
   1. Are pregnant or have recently given birth
   2. Are chronically self-harming or suicidal
   3. Have a mental health or an intellectual disability
   4. Need medical observation
   5. Have a mobility impairment.

​

A. The Ontario Human Rights Commission

The OHRC is a statutory human rights body established under the Code, and is responsible for promoting and advancing human rights and preventing discriminatory practices in Ontario.[3]

The OHRC's submissions are based on years of extensive work advocating for Ontario’s segregation practices to meet the government’s obligations under the Code, Charter and international law. The OHRC is recognized internationally as an expert in correctional policy, and recently acted as an expert reviewer for Penal Reform International’s “Mental Health in Prison: A short guide for prison staff.”[4]

The OHRC’s concern with segregation is based, in particular, on the disproportionate adverse effect it has on Code-protected groups such as people with mental health and physical disabilities, women, as well as Indigenous and Black individuals who are overrepresented in the corrections system.  

The OHRC’s work specifically relating to segregation in Ontario’s correctional system has included:

• Taking part in human rights litigation relating to the use of segregation[5]
• Negotiating legally binding settlement agreements and a tribunal consent order concerning Ontario’s segregation practices[6]
• Reviewing and commenting on correctional policy
• Providing submissions to government highlighting the harms of segregation, and making recommendations to address human rights concerns[7]
• Touring 10 correctional facilities, including the St. Lawrence Valley Correctional and Treatment Centre[8]
• Many interviews with prisoners held in segregation across Ontario
• Consulting with management and front-line correctional officers across Ontario
• Consulting with experts, stakeholders and other advocate groups
• Obtaining and analyzing data on Ontario’s segregation use[9]
• Extensive consultation with the Ontario government and the Legislature on drafting and enacting Ontario’s Correctional Services and Reintegration Act, which was enacted in 2018 but has not been proclaimed into force.[10]

 

B. Status of the Correctional Services and Reintegration Act

As a starting point and for transparency, the Ministry has an obligation to the public to clarify how the proposed amendments to Regulation 778 fit into any broader legislative plans regarding segregation use in Ontario. In particular, if the Ministry is proposing these amendments in lieu of proclaiming the Correctional Services and Reintegration Act (CSRA), the Ministry must clearly communicate this to the public.

The CSRA is the new legislative scheme for governing Ontario’s correctional system. It is meant to replace the outdated Ministry of Correctional Services Act and Regulation 778, and includes clear and robust protections for prisoners in segregation.

First, the CSRA requires that all segregation placements be subject to independent and external review. It establishes that any segregation placements of over five consecutive days must be referred to an Independent Regional Chair to have a hearing before an Independent Review Panel.[11] The CSRA expressly provides that both the Independent Regional Chair and members of the Independent Review Panels will be appointed by the Lieutenant Governor in Council – which means that they will be external to the Ministry.[12]

Second, the CSRA includes strict time limits for segregation use. It imposes a hard 15-day cap as well as a 60-day annual aggregate cap on all segregation placements.[13]

Third, the CSRA sets out a prohibition on any segregation at all for prisoners who (a) are pregnant or have recently given birth, (b) are chronically self-harming or suicidal, (c) have a mental health or an intellectual disability, (d) need medical observation, or (e) have a mobility impairment.[14]

These protections would go a long way to addressing issues with Ontario’s segregation use, provided the government does not delay implementing them.[15]

However, despite being passed by Ontario’s Legislative Assembly and receiving Royal Assent in May 2018, the CSRA does not yet apply as law in Ontario. Before taking effect and become legally binding, the CSRA must be proclaimed into force by the government. So even though the Legislature has passed the CSRA – signalling the necessity for and viability of the segregation safeguards described above – these are not yet in place in Ontario.

The current situation creates public confusion about the law governing Ontario’s correctional system and ongoing use of segregation. The fact that the CSRA was passed by the Legislature signals to the public that there are new legislative requirements for Ontario’s correctional system. However, the fact that the CSRA will not actually take effect until it is proclaimed by the government is technical and not widely understood.

It is important that the government provide the public with clear information about the status of the laws governing Ontario’s correctional system. This includes clarifying if the government will be proclaiming the CSRA, and if so, when that will occur. Alternatively, if the amendments to Regulation 778 are being proposed instead of proclaiming the CSRA, this must also be clearly communicated.

 

OHRC Recommendation 1:

Clarify whether the government intends to proclaim the Correctional Services and Reintegration Act, which was passed by the Legislature in 2018, and includes requirements for effective segregation oversight and time limits, and prohibits the segregation of particular vulnerable groups.

 

C. Amendments relating to the segregation review process

Currently, Section 34(3) of Regulation 778 requires a superintendent to “review the circumstances of each inmate who is placed in segregation at least once in every five-day period to determine whether the continued segregation of the inmate is warranted.”[16]

The Ministry’s proposed amendment will require these five-day reviews to be conducted by the “Assistant Deputy Minister of Institutional Services or their designate”[17] instead of the superintendent. The commentary accompanying the proposed amendment suggests that this process will be “independent” because the designate will not be “a superintendent or anyone who reports directly or indirectly to a superintendent.”[18]

This proposal is insufficient to protect prisoners from the harms of segregation. It will simply change the Regulation to require a type of segregation review that has repeatedly been found insufficient in terms of providing meaningful oversight of segregation in Ontario’s correctional system. For years, in part as a result of the settlement in Jahn v Ministry of Community Safety and Correctional Services, Ontario’s correctional policy has required that longer-term segregation placement be reviewed by designates other than superintendents and those reporting to them – including review specifically by the Assistant Deputy Minister of Institutional Services.[19] Indeed, this very type of segregation review process was in place and allowed Adam Capay – a young First Nations man with mental health disabilities – to be held in continuous segregation for more than 1,500 days.

Courts, experts and oversight bodies – including the OHRC – have all identified Ontario’s internal segregation reviews as being inadequate for safeguarding human rights, and have consistently stated that meaningful and truly independent oversight of segregation must be external.

 

Oversight bodies and experts have repeatedly found internal segregation reviews to be inadequate

The OHRC has been calling for external segregation review for years. In its January 2016 submission to the Ministry’s Provincial Segregation Review, the OHRC considered the Ministry’s segregation review process, which included reporting to the Assistant Deputy Minister, and concluded that external review was necessary:

MCSCS currently has internal processes requiring segregation decisions to be evaluated at least every five days, baseline and ongoing health assessments, and reporting of long-term segregation placements to the Deputy Minister, Institutional Services. However, repeated cases of troubling segregation use – despite the application of internal review processes – have underscored the necessity of external and independent review.

Requiring external and independent oversight of segregation decisions, including judicial review, is in line with recommendations made by the UN Special Rapporteur on Torture and United Nations Committee Against Torture. The Special Rapporteur has stated that segregation decisions should be subject to a documented system of regular review carried out by an independent body. In situations where prisoners have made complaints, the Special Rapporteur has stated, “all internal administrative findings must be subject to external appeal through the judicial process.” In 2012, the UN Committee Against Torture issued a report urging Canada to make solitary confinement decisions subject to judicial review.[20] 

Since then, the OHRC has repeatedly reiterated its recommendation that segregation placement decisions must be subject to external and independent review, including judicial oversight.[21]

The Ombudsman of Ontario and Independent Advisor on Corrections Reform have also confirmed the need for external review. In Out of Oversight, Out of Mind, its 2017 report on how the Ministry tracks and reviews segregation placements, the Ombudsman of Ontario concluded that the Ministry’s internal segregation review process was inadequate and ineffective:

Our investigation found that these mandated reviews often fail to rigorously evaluate an inmate’s placement and instead become pro forma exercises. We found instances where the information in an inmate’s segregation reports was sparse and contradictory. Senior Ministry officials failed to consistently review the 30-day reports generated by correctional facilities and regional Ministry staff. And many of the frontline employees we interviewed expressed concerns that the segregation reporting framework is inefficient, repetitive, and fails to ensure procedural protections for segregated inmates.[22]

Like the OHRC, the Ombudsman of Ontario determined that this internal review process alone was insufficient, and recommended that the Ministry implement a system to independently review segregation placements.[23]

Howard Sapers, the Independent Advisor on Corrections Reform, reached a similar conclusion following his examination of the internal segregation review and accountability mechanisms in place in Ontario’s correctional system. In his March 2017 report, Segregation in Ontario, he concluded that “Segregation placements must be accompanied by robust, effective and procedurally-fair oversight and review mechanisms. Ontario’s current segregation review and oversight framework fails to meet this standard.”[24] The Independent Advisor recommended that Independent Hearing Officers be appointed to adjudicate all segregation placements beyond five days.[25]

 

R v Capay and other legal decisions confirm that internal segregation reviews are inadequate

Following these reports, earlier this year the Ontario Superior Court of Justice confirmed in R v Capay that Ontario’s system of internal segregation review is broken and inadequate.[26]

In holding that Adam Capay’s confinement in segregation for over 1,500 days violated his section 7, 9, 12 and 15 Charter rights, the Court considered extensive evidence on the operation of internal segregation accountability mechanisms in Ontario’s correctional system.

The Court found that it was “obvious that the segregation review process in the case of the accused was meaningless at the institutional and regional levels.”[27] The Court based its conclusion on evidence that:

• The administrative summaries of Mr. Capay’s health records failed to accurately reflect the psychiatrist’s assessments
• Mr. Capay’s segregation reviews had often been missing and had been limited to one- or two-line comments “reiterating generic reasons noted on previous reasons”
• Continued segregation was always supported by regional reviewers.[28]

Officials at both the institutional and regional level testified that they were unable to recall “a single occasion” where continued segregation was not supported at the regional level.[29] One regional official even testified that they did not think it was their role to interfere with a segregation decision supported by a social worker or a psychiatrist.[30]

While R v Capay did not directly address the constitutionality of the statutory framework governing segregation review in Ontario, the Court did reflect on the systemic problems with the current system. It noted that the evidence heard “demonstrates a disturbing pattern of disregard for policy, procedure, and inmates’ rights within the Ontario correctional system.”[31] The Court also found that the misconduct in the case before it was “not isolated” and that the “inadequacy and ineffectiveness of the segregation review process in Ontario has been a long standing and ongoing problem.”[32]

These legal conclusions are consistent with the trend in other recent Canadian court decisions addressing segregation. In Canadian Civil Liberties Association v Canada, a challenge to the federal corrections legislation, the Ontario Superior Court of Justice held that a robust duty of fairness applies to the decision to maintain an inmate in administrative segregation, and the failure to provide for independent review of such decisions violates the Charter.[33] While the Court suggested that independent review could be conducted by corrections officials outside a specific institution, Capay shows that this cannot be achieved in Ontario’s correctional system through an internal Ministry process. Segregation review that fails to provide for external oversight will not be independent or effective.

The need for external review of segregation decisions was further confirmed by the evidentiary findings of the British Columbia Supreme Court and Court of Appeal in British Columbia Civil Liberties Association v Canada. Those courts found that external review is necessary to:

a)  Ensure an objective consideration of the facts measured against the legislative criteria for segregation free of institutional pressures and bias

b)  Cause [the correctional service] to more rigorously examine alternatives to segregation

c)   Increase the level of accountability of the institution and provide inmates with an opportunity to present their case to an individual not affiliated with the institution, thus increasing the perception of fairness

d)  Ensure compliance with time limits and other legislative and policy requirements of administrative segregation

e)  Avoid the situation whereby all placement reviews are conducted by individuals who are part of the culture and hierarchy of [the correctional service], and therefore deferential to other decision‑makers, and

f)   Address the failure of repeated attempts at internal reform to ensure procedural fairness.[34]

In reaching its conclusion, the British Columbia Court of Appeal relied on findings of the trial judge – similar to those in Capay – that under a system of internal review, “once an inmate has been placed in administrative segregation, the procedural safeguards in place do not, in practice, work to prevent the individual from languishing in solitary confinement.”[35] The British Columbia Court of Appeal concluded that:

On the basis of the judge’s findings of fact, the Canadian experience with internal review, and detailed studies of the issue which have resulted in repeated calls for the adoption of external review, a well-informed member of the public could not reasonably conclude that internal review of segregation decisions will be done fairly. That is so even if those decisions are made by [Correctional Service Canada] officials who are neither subordinate to nor within the circle of influence of the institutional head whose decision is being reviewed. As noted, the judge found that at least unconscious institutional bias has plagued the segregation review process, even in circumstances where the decision-making process has been elevated to the regional or national levels.[36]

Similarly, in light of Capay, the proposed amendments fail to provide for a review or oversight process that the public could reasonably conclude will be undertaken fairly.

 

Internal reviews fail to provide meaningful independent oversight of segregation

The proposed amendments will not provide the independence needed to ensure that segregation oversight is objective and robust, and meets the high standard of procedural fairness required for such decisions under the Charter.

The OHRC calls on the government to take immediate action to amend Regulation 778 to include a truly independent, external segregation review and oversight process.

OHRC Recommendation 2:

Take immediate steps to establish an external and independent review process for segregation decisions, including judicial oversight.

 

D. Amendments relating to a 15-day time limit for disciplinary segregation

Regulation 778 currently permits a superintendent who has determined a prisoner committed a misconduct of a serious nature to impose a term of disciplinary segregation, also referred to as “close confinement,” for up to 30 continuous days.[37]

The Ministry proposes to amend the Regulation to reduce the maximum length of disciplinary segregation terms from 30 to 15 days. The commentary to the proposed amendment indicates that the change will bring the Regulation into alignment with operational policy, which already provides for a 15-day cap on disciplinary segregation.[38]

A strict 15-day time limit is a crucial safeguard for limiting the harm caused by long-term segregation placements and is consistent with international standards. However, the proposed amendment is deeply troubling because the 15-day time limit will only apply to disciplinary segregation, and will not include administrative segregation – which accounts for almost all segregation use.[39] Disciplinary segregation constituted only 3% of Ontario’s segregation placements in 2016.[40]

The commentary to the proposed amendment indicates that the 15-day limit on disciplinary segregation is based on “research, engagement with stakeholders and the public, and international standards.” This is misleading. Experts, international standards, and the Court of Appeal of Ontario have all recognized that prolonged segregation causes serious and lasting harm and should be subject to strict time limits, regardless of the reason for segregation.

Regulation 778 should be amended to set out a 15-day time limit for all segregation placements. The OHRC also recommends that the government restrict the use of segregation to 60 aggregate days in a calendar year. This is the only way to prevent back-to-back segregation placements that mimic long-term segregation, and thereby protect individuals from extensive segregation use.

 

Strict time limits are necessary to address the serious harm caused by long-term segregation

In light of the serious harm caused by prolonged segregation, both the Court of Appeal for Ontario and international standards recognize the need for strict time limits for segregation placements.

In its recent decision in Canadian Civil Liberties Association v Canada [CCLA], the Court of Appeal found that prolonged “administrative segregation causes foreseeable and expected harm which may be permanent and which cannot be detected through monitoring until it has already occurred.”[41] On this basis, the Court of Appeal held that segregation for greater than 15 days is unconstitutional and amounts to cruel and unusual punishment contrary to section 12 of the Charter.[42] The finding on the serious harm caused by segregation has been echoed by many other courts in Ontario and across the Canada.[43] The evidence of harm is now undeniable, and the Ministry should design the Regulation to address this reality.

Authoritative international standards also clearly establish the necessity for strict time limits to constrain the harm of segregation. In 2015, the United Nations General Assembly adopted the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules.[44] The Mandela Rules set out specific provisions governing segregation, referred to as solitary confinement, and defined as the confinement of prisoners for 22 hours or more a day without meaningful human contact.[45] While the Mandela Rules explicitly prohibit the use of solitary confinement in excess of 15 days,[46] they also say that solitary confinement should “be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review.”[47] The international standards do not distinguish between disciplinary or non-disciplinary solitary confinement.

Ontario’s Court of Appeal has held that the Mandela Rules are an authoritative interpretation of international rules, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[48]

 

Ontario continues to rely on long-term segregation placements

Without establishing a 15-day time limit for administrative segregation, the government is effectively sanctioning the use of indefinite segregation and accepting that prisoners will be seriously harmed as a result.

The data on segregation use establishes that Ontario continues to hold prisoners in prolonged segregation, and that these placements fall almost exclusively under the category of administrative segregation. In 2015 – 2016, the Ministry reported that 1,019 people spent 30 or more continuous days in segregation, for an average time of 104 days.[49] The Ministry’s most recent 2018 segregation data showed that there were at least five cases of continuous segregation extending over a year, including one person who was held in segregation at the Central East Correctional Centre for 598 continuous days.[50]

The need for strict time-limit safeguards is underscored by the fact that vulnerable Code-protected groups, including people with mental health and physical disabilities, women, and Indigenous prisoners are being disproportionately affected by segregation.[51]

The OHRC calls on Ontario to take immediate action to amend Regulation 778 to provide hard time limits on all forms of segregation.

 

OHRC Recommendation 3:

Strictly prohibit indefinite segregation by:

1. Imposing a 15-day cap on all segregation placements, and
2. Restricting the use of segregation to 60 aggregate days in a calendar year.

 

E. The need to prohibit segregation for particularly vulnerable groups

The OHRC urges Ontario to make additional amendments to Regulation 778 to prohibit segregation altogether for particularly vulnerable Code-protected groups who are negatively impacted by this practice.

 

People with mental health disabilities are disproportionately placed in and harmed by segregation

It is well established that segregation has particularly damaging effects for people with pre-existing mental health disabilities. The United Nations Special Rapporteur on Torture has determined that segregation “of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment.”[52] The Mandela Rules also state that segregation of prisoners with mental disabilities should be prohibited when their conditions would be exacerbated by the practice.[53]

Appellate courts in both Ontario and British Columbia have explicitly acknowledged that the segregation of prisoners with mental health disabilities is a significant concern. In its recent CCLA decision, the Ontario Court of Appeal specifically noted that “those with mental illness should not be placed in administrative segregation.”[54]

Data on Ontario’s segregation use also shows that people with mental health disabilities are grossly over-represented in segregation, and are also subject to longer placements. The Independent Advisor on Corrections Reform found that while 30% of prisoners in Ontario’s correctional facilities were flagged as having possible or confirmed mental health disabilities, this group made up 43% of prisoners placed in segregation.[55] The Ministry’s most recent segregation data shows that over 50% of the prisoners placed in

segregation in April and May 2018 had a “mental health alert” on their file.[56] In 2016, people with mental health and/or suicide risk alerts spent approximately 30% more time in segregation compared to the rest of the segregated population.[57]

 

Ontario should prohibit segregation for persons with mental health disabilities and other especially vulnerable groups

In the 2013 Jahn v Ministry of Community Safety and Correctional Services settlement, Ontario explicitly acknowledged that segregation can have an adverse effect on people with mental health disabilities, and made a legally binding commitment to ensure that people from this group would not be placed in segregation except as a last resort.[58] This commitment was reaffirmed in 2018, when the Human Rights Tribunal of Ontario issued the Ontario Human Rights Commission v Ontario consent order, which included appointing an Independent Expert and Independent Reviewer to support the Ministry in achieving operational compliance with the 2013 settlement terms.[59]

The OHRC acknowledges that the implementation process for the consent order is ongoing and that a final report on Ontario’s compliance will be released by the Independent Reviewer, Justice David Cole, in the fall of 2019.[60] Nonetheless, the OHRC is concerned that, seven years after committing to strictly limit the use of segregation for persons with mental health disabilities, the most recent data on segregation use in Ontario suggests that the Ministry has failed to meet this commitment at an operational level.

The OHRC calls on the Ministry to work with the Independent Expert, Professor Kelly Hannah-Moffat, and Independent Reviewer to effectively prohibit segregation for persons with mental health disabilities in accordance with the terms of the Jahn settlement and consent order.

In addition to prohibiting segregation for people with mental health disabilities, the OHRC also calls on Ontario to amend Regulation 778 to prohibit segregation for other vulnerable groups, including people who: are pregnant or have recently given birth; are chronically self-harming or suicidal; have an intellectual disability; need medical observation; or have a mobility impairment.

Accordingly, the OHRC calls on Ontario to also amend Regulation 778 to provide additional protections for particularly vulnerable groups.

OHRC Recommendation 4:

Strictly prohibit the segregation of prisoners who:

1. Are pregnant or have recently given birth
2. Are chronically self-harming or suicidal
3. Have a mental health or intellectual disability
4. Need medical observation
5. Have a mobility impairment.

 

Conclusion

Experts, international authorities and courts across Canada agree that segregation causes significant and permanent harm. Yet it continues to be used extensively in Ontario’s correctional facilities, including for vulnerable Code-protected groups. Ontario has no effective safeguards in place to limit the harm caused by segregation.

Even with the Ministry’s proposed amendments, Regulation 778 will not mitigate the harm caused by segregation. This does not reflect a genuine effort by the Ministry to address serious human rights issues associated with segregation. Instead, it will signal to prisoners and advocates that they must resort to expensive litigation to bring Ontario’s correctional practices in line with minimum constitutional and Code requirements.

Segregation is no longer an acceptable form of treatment for prisoners in Ontario or Canada. Now is the time for the Ministry to take action to ensure that human rights are at the centre of the law, regulations and policy governing any ongoing use of segregation in Ontario’s correctional institutions.