Today, the Ontario Human Rights Commission (OHRC) notes the release of Justice David Cole’s Final Report, which finds that Ontario has not complied with a legal settlement and order requiring it to ensure that prisoners with mental health disabilities receive appropriate mental health services, and are not placed in segregation except as a last resort. The Final Report assesses Ontario’s compliance with the 2013 Jahn v MCSCS settlement and the 2018 OHRC v Ontario consent order.
In the Jahn settlement and order, the OHRC and the Government of Ontario agreed to legally binding requirements to protect the rights of prisoners, and particularly women with mental health disabilities. In the settlement, Ontario expressly acknowledged the harm segregation causes to people with mental health disabilities.
Between July 2018 and June 2019, more than 12,000 people were placed in segregation in Ontario, and 46% of them had mental health alerts on their files.
The Final Report concludes that Ontario did not comply with the Jahn settlement and order and specifically that the Ministry of the Solicitor General:
- Failed to conduct adequate mental health screening and reassessment to properly identify people with mental health disabilities in their care
- Failed to implement a clear definition of segregation based on the internationally-accepted standard of being isolated in a cell for up to 22 hours per day
- Failed to implement a system to accurately track segregation placements
- Failed to comply with requirements to conduct internal segregation reviews to ensure that people with mental health disabilities are only placed in segregation as a last resort
- Failed to develop Care Plans to provide individualized care to people with mental illness.
Courts across Canada have consistently recognized the harm caused by solitary confinement. In 2019, the Ontario Superior Court found that Ontario’s long-term segregation of Adam Capay exacerbated his mental health disabilities and constituted cruel and unusual treatment. In another Superior Court decision this week, Francis v Ontario, Justice Perrell stated that Ontario “routinely placed inmates with mental health or suicide risk alerts on file in administrative segregation,” that the government has been “dilatory” in its efforts to reform its use of solitary confinement, and that it has been “unable to satisfy all the terms of the Jahn settlement orders.”
The OHRC is concerned that nearly seven years have passed since the first Jahn settlement and too little has changed for prisoners with mental health disabilities in Ontario corrections.
This week marks a pivotal time for Ontario’s corrections policies. With the federal government discontinuing its appeal of the Ontario Court of Appeal’s decision in CCLA v Canada and Justice Perell’s decision in Francis, the law in Ontario is now clear: segregation of any prisoner for longer than 15 days – and the segregation of some prisoners with serious mental health disabilities for any period of time – is cruel and unusual treatment, contrary to the Canadian Charter of Rights and Freedoms.
The OHRC expects the government to follow the directions of these courts, to ensure that no prisoner is subjected to the unconstitutional harms caused by solitary confinement. It is reviewing the Final Report along with the recent court decisions, and is considering all of its options to hold the government accountable for meeting its legal obligations to protect people with mental health disabilities in Ontario’s prisons.
The OHRC will provide an update and its next steps in the coming weeks.
Final Report of the Independent Reviewer on the Ontario Ministry of the Solicitor General’s Compliance with the 2013 “Jahn Settlement Agreement” and the Terms of the Consent Order of January 16, 2018 Issued by the Human Rights Tribunal of Ontario
Segregation and mental health in Ontario’s prisons: Jahn v. Ministry of Community Safety and Correctional Services