This report summarizes the Ontario Human Rights Commission’s (OHRC) findings and human rights concerns about the conditions of confinement at Toronto South Detention Centre (TSDC).
The OHRC has toured jails and correctional centres across Ontario since 2016, as part of its monitoring of the settlements and an Order in Jahn v Ministry of Community Safety and Correctional Services (Jahn). Under section 29 of the Ontario Human Rights Code (Code), the OHRC can also initiate reviews and inquiries and make recommendations related to incidents of tension or conflict in a community and report to the people of Ontario on the state of human rights.
This report is based on:
- Tours of the facility on January 27 and February 13, 2020
- Engagement with TSDC’s Superintendent and senior command
- Engagement with Ministry of the Solicitor General (SOLGEN) leadership including Deputy Solicitor General (Correctional Services), Assistant Deputy Minister (Institutional Services) and Director (Toronto Regional Institutional Services)
- Review of primary source documents and information received from SOLGEN including segregation documentation, log books, handbooks, etc.
- Private interviews and correspondence with approximately 75 prisoners
- Engagement with current members of the TSDC Community Advisory Board (CAB)
- Relevant decisions from courts and tribunals.
The OHRC is aware that there has been extensive judicial and media scrutiny of the conditions of confinement at TSDC. It acknowledges that management and staff are making good faith efforts to address some of the concerns highlighted. The OHRC’s intention is not to negatively affect staff morale or otherwise undermine these efforts. Instead, the OHRC hopes that this report will bring into focus the systemic legal, policy and operational issues that SOLGEN must address to adequately support the institutional leadership’s efforts to meet the human rights of prisoners.
Note that given the timing and initial focus of the OHRC’s investigation, this report does not address SOLGEN’s response to the COVID-19 pandemic. It does, however, shed some light on the systemic challenges that exist in terms of addressing the pandemic in TSDC. Notably, in some respects TSDC is better positioned than many other Ontario correctional institutions to adopt public health measures like social distancing and social isolation because it is not at capacity. This sets it apart from most other provincial jails the OHRC has visited which are double- and triple-bunked.
Key findings
-
TSDC management and front-line workers routinely use segregation, restrictive confinement, lockdowns and “time in cell” sanctions that raise serious human rights concerns.
According to the data received by the OHRC, TSDC management and front-line staff routinely use segregation, restrictive confinement, lockdowns and “time in cell” sanctions to manage the prison population, which raises serious human rights concerns.
First, given the high proportion of Indigenous and Black prisoners at TSDC, and the high prevalence of mental health disabilities and addictions among the provincial remand population, the OHRC is concerned that groups protected the Code are disproportionately negatively impacted by TSDC’s routine use of lockdowns, segregation, restrictive confinement and “sanctions.”
Second, the OHRC is concerned that segregation, which is currently subject to strict limits and oversight, is being replaced by correctional practices that result in substantially similar conditions of confinement without associated legal and policy protections. These practices include lockdowns, restrictive confinement and imposition of “time in cell” as a sanction. This is highly problematic because there is no evidence to suggest that the serious harms associated with solitary confinement are mitigated based on how the placement is labelled, classified or justified.
Third, extensive use of lockdowns, segregation and restrictive confinement, as well as the imposition of arbitrary sanctions that result in significant deprivations of liberty, raise serious human rights concerns under the Charter of Rights and Freedoms. These could have an impact on a range of protections including the right to liberty and security of the person (s. 7), the right to be free from arbitrary detention or imprisonment (s. 9), the right not to be subjected to cruel and unusual treatment or punishment (s. 12) and the right to equality (s. 15).
SOLGEN has been aware of the human rights issues associated with its over-reliance on segregation, restrictive confinement and lockdowns for many years. The OHRC has raised these concerns in litigation before courts and tribunals, as well as in letters highlighting findings from tours of other Ontario correctional institutions. These concerns have also been noted by Ontario’s previous Independent Reviewer of Ontario Corrections, the Ombudsman, the Auditor General, Courts and tribunals, and by the media. The OHRC and many others have made several recommendations over the years to help SOLGEN address these human rights concerns, but progress has been negligible.
-
Prisoners face several systemic challenges to maintaining family and community contact, which has a disparate negative impact on prisoners with caregiving responsibilities.
Prisoners at TSDC face systemic challenges to maintaining family and community contact because the institution:
- Prioritizes video visits over in-person visits
- Uses in-person visits as a reward for good behavior and revokes visits as a sanction for behaviour that falls short of misconduct
- Cancels visits during frequent lockdowns
- Requires prisoners to place collect telephone calls and limits their ability to call cellular phones.
These systemic challenges affect all prisoners, but have a disparate negative impact on prisoners who have caregiving responsibilities protected under the Code.
-
There are public health concerns related to infrequent changes of bedding and clothing and outbreaks of scabies.
-
SOLGEN has taken positive steps to meet the creed-related needs of Indigenous prisoners by piloting an “Indigenous Healing Unit” and committing to procure the services of an Indigenous Elder. The OHRC encourages SOLGEN to also ensure that prisoners at TSDC have regular access to a Muslim Imam.
-
SOLGEN should continue to work collaboratively with the TSDC’s Community Advisory Board, which has a statutory mandate to enhance oversight, monitoring and accountability.
About Toronto South Detention Centre
Toronto South Detention Centre (TSDC) houses men, and a small number of trans people, who are on remand or are appearing before Toronto courts. TSDC is a maximum-security institution that uses several security measures, including closed-circuit television, metal detection and full body x-ray scanner systems. The prisoners at TSDC are not detained pursuant to a criminal conviction and remain legally innocent.
The institution has a capacity of 1,698 operational beds. As of January 15, 2020, TSDC was under capacity with a count of 1,138 prisoners. This sets TSDC apart from other Ontario institutions the OHRC has visited, which often use double- or triple-bunking. The OHRC was told that TSDC remains under-utilized due to chronic staff shortages.
Black and Indigenous peoples are over-represented at TSDC, consistent with their over-representation throughout the criminal justice system. Despite only making up eight and one per cent of Toronto’s population respectively, Black people made up approximately 24.3 per cent of total admissions to TSDC in 2019, and Indigenous people made up 4.7 per cent.
TSDC has three towers (A, B, C) which each have three floors (1, 2, 3) and which include a number of cells or “living units:”
- Intake (seven units)
- Direct supervision (24 units)
- Medical direct supervision
- Behavioral care
- Mental health
- Special care (two units)
- Special handling
- Segregation (two units)
- Infirmary.
TSDC adopts a direct supervision model in some of its general population housing units. According to SOLGEN, direct supervision places correctional officers in the inmate housing areas to interact closely with prisoners. SOLGEN notes that extensive research has determined that when properly implemented, direct supervision allows correctional officers to recognize conflicts before they escalate [emphasis added].
Direct supervision consistently:
- Lowers inmate-on-inmate and inmate-on-staff assaults
- Decreases the incidence of suicide
- Reduces serious incidents, such as disturbances and vandalism
- Reduces the need for prisoners to manufacture and carry weapons
- Creates an improved and more normalized social environment
- Provides a setting where rehabilitative programs have a better chance to work
- Makes inmates more responsible and accountable for day-to-day living.
TSDC correctional officers lead a range of programming including: “Life Skills,” “Change is a Choice,” “African Canadian Excellence” and “Program Eastern Door” geared to Indigenous prisoners. A Cognitive Behavioral Therapy program is delivered on the specialized units. A large number of volunteer-led programs and creed-related services are also available at TSDC.
Segregation and restrictive confinement
“Segregation” (also known as solitary confinement) describes the physical and social isolation of a prisoner, with high surveillance and minimal stimulation, for up to 22 hours per day. The federal Office of the Correctional Investigator has described segregation as the “most austere and depriving form of incarceration that the state can legally administer in Canada.”
Some prisoners are officially placed in disciplinary or administrative segregation, while others are put in units with alternative labels such as “special needs unit” or under conditions substantially similar to those in segregation (“restrictive confinement”).
In the recent Superior Court of Justice decision R v Capay, 2019 ONSC 535, Justice Fregeau relied on uncontroverted evidence establishing that “segregation exacerbates prior mental health problems and can lead to the development of previously undetected mental health problems.” Dr. John Bradford, the psychiatrist who testified in the matter, gave further uncontroverted evidence that prisoners placed in segregation “become anxious, depressed or both. They undergo cognitive disturbances…so the cognitive effects can be quite profound.”
These findings are consistent with those of the Superior Court of Justice in Canadian Civil Liberties Association (CCLA) v Canada, 2019 ONCA 243 (currently on appeal to the Supreme Court of Canada). In that case, Associate Chief Justice Marrocco accepted expert evidence that “prisoners experience the isolated conditions of solitary confinement, sensory deprivation, and constant 'lock down' status very negatively and stressfully,” that “segregation appears to be a significant risk factor for the development of psychiatric symptoms including depression and suicidal ideation, as well as psychiatric symptoms generally,” and that “long-term segregation may lead to the development of previously undetected psychiatric symptoms.” Associate Chief Justice Marrocco also found that the negative psychological effects of segregation “can occur within days.”
The British Columbia Supreme Court also recently found that administrative segregation subjects prisoners to a “significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide.” Based on the significant evidence before it, the court in BCCLA v Canada, 2018 BCSC 62, concluded that “rather than prepare inmates for their return to the general population, prolonged placements in segregation have the opposite effect of making them more dangerous both within the institution’s walls and in the community outside.”
In recent years, as a result of litigation, settlements and an Order arising out of the Jahn matter, Ontario’s use of segregation is now subject to some limits. For example, Ontario is legally bound not to place prisoners with mental health disabilities in segregation “absent undue hardship” and is also required to track and publicly report on its use of segregation.
Use of segregation
Between July 1, 2018, and June 30, 2019, there were at total of 2,564 segregation placements at TSDC. This was the second highest number of segregation placements of any Ontario correctional institution. During this time period, the reasons for segregation placement at TSDC were:
Table B: Segregation placements and reasons (July 2018 – June 2019)
|
Reasons for segregation placement* |
Number of segregation placements |
|
Inmate needs protection (medical) |
835 |
|
Alleged misconduct |
830 |
|
Security of institution/safety of others |
449 |
|
Inmate request |
401 |
|
Close confinement (i.e. disciplinary segregation) |
288 |
|
Inmate needs protection |
195 |
|
Security of institution/safety of others (medical) |
115 |
*Note: there may be multiple reasons for a single segregation placement
When asked about the high number of prisoners placed in segregation for the reason of “inmate needs protection (medical),” TSDC management said that most of these individuals had complex mental health disabilities that could not be effectively managed in the general population. They noted that there were very few treatment-based alternatives for people with severe mental health disabilities.
On our tour, TSDC leadership stated that more recently, they have nearly “eliminated” the use of segregation by scheduling each prisoner or a small group of prisoners to leave their cells for at least two hours plus one minute per day. Where a prisoner comes out of their cell by themselves, they are provided with “meaningful opportunities” to engage with correctional officers and staff. TSDC leadership noted that on the day of our first visit, there was only one individual in conditions of confinement constituting segregation. Notably, taken at its highest, it would appear that TSDC has replaced some segregation placements with restrictive confinement.
Prisoners we spoke to were genuinely perplexed by management’s claim that segregation was no longer routinely being used at TSDC. Several prisoners told us that they had been held in segregation within the last month and that they were not provided with an opportunity to shower or use the yard on a daily basis, let alone be afforded more than two hours outside of their cell. One prisoner who was segregated in October 2019 told us he was denied food for six or seven days and was hospitalized as a result. We did not verify this information.
We asked for primary source documentation to better understand and assess the use of segregation at TSDC in the short term. The documents provided clearly establish that from October 1 to December 31, 2019, prisoners continued to be segregated at TSDC on a near-daily basis.
We also heard from prisoners that TSDC management was locking down general population units to allow correctional officers to prioritize releasing prisoners from conditions that would otherwise constitute segregation. The data we obtained from TSDC on the use of lockdowns (discussed below) seems to support this suggestion (i.e. there are fewer lockdowns in specialized units versus general population units). Any approach that replaces segregation – which is subject to strict oversight and legal limitations – with lockdowns, is problematic as it may result in serious harm without any legal protections.
While we recognize and encourage TSDC staff to continue their efforts to eliminate the use of segregation, we are concerned that the current approach that replaces segregation with restrictive confinement and lockdowns is marginal, technical and legally questionable.
Lockdowns
The term “lockdown” is generally used to describe conditions of confinement where prisoners are locked in their cells, usually for reasons of health and safety, with extremely limited movement within the institution for a period ranging from hours to weeks.
Lockdowns deprive prisoners of their residual liberty. Lockdowns also have a negative impact on physical and mental health, hygiene and wellness. Lockdowns are stressful for prisoners and staff alike, and can raise tensions that sometimes erupt in violence. In R v Nguyen, 2017 ONCJ 442, the Ontario Court of Justice found that lockdowns “inevitably led to range-wide tension with the guards and the constant risk of more intimate conflict with a random cellmate enduring a similar sense of indefinite confinement and ancillary anxieties.”
Earlier this year, in R v Persad, 2020 ONSC 188, the Ontario Superior Court of Justice noted that lockdowns have a negative impact on human dignity. In another case, the Court found that: “lockdowns represent a modern form of the harsh Dickensian conditions that motivated the Victorian movement towards prison reform. The lockdowns are a regressive form of punishment that represents the opposite of an enlightened penal regime” [R v Nsiah, 2017 ONSC 769].
Legal authority
There is no specific legal authority for lockdowns and the term is not defined in the Ministry of Correctional Services Act. SOLGEN’s Policy and Procedures Manual (2004) discusses lockdowns in the section entitled “Crisis Management” (Crisis Management Policy).
The Crisis Management Policy defines a lockdown as:
A strict limitation on the movement of inmates, non-correctional staff and other persons in all or part of an institution in response to a serious security concern or medical quarantine. The limitations may include disruptions to inmate programs, cancelling visits, suspending access to lawyers and other professional visitors, terminating admissions and/or transfers or any others limits the Superintendent feels appropriate to address the situation.
While the policy does not define a “partial lockdown,” SOLGEN leadership told us that a partial lockdown is “a lockdown of one or more areas within the institution; however, not a lockdown of all units. This partial lockdown could range from a portion of the day (minutes to hours) to a full day.”
The Crisis Management Policy states that the authority for a lockdown arises through the Superintendent’s legal obligation to “ensure the safety of inmates, staff and the public while ensuring the security of the institution.” SOLGEN leadership further clarified that lockdowns can be imposed due to “staffing levels, security-related incidents or maintenance issues.” However, SOLGEN was not able to point to any specific policies to support the use of lockdowns in non-crisis situations or for these other specific reasons.
The Crisis Management Policy further states that when the Superintendent determines that a serious security concern or medical quarantine necessitates a lockdown, they will prepare a report indicating relevant details including the “reason for lockdown” and “all actions that are being taken the address the situation.” The report must be sent to the Regional Director (in the case of TSDC, the Director of Toronto Region Institutional Services) and SOLGEN’s Information Management Unit. TSDC management confirmed that such reports are regularly prepared and sent to the Regional Director, though we did not seek or review them.
Conditions of confinement during lockdowns at TSDC
The extent that lockdowns interfere with standard operations is an area of dispute. SOLGEN leadership maintains that during both partial and full lockdowns, prisoners have access to all of:
- Shower, yard and phone calls on a controlled approach (two cells at a time)
- Healthcare, hygiene products and clothing changes
- Mail and newspapers
- Canteen
- Professional visits (only cancelled as an absolute last resort)
- Public visits (unless operationally required to cancel)
- Chaplain.
However, SOLGEN provided a caveat: “There may be some limited occasions when the facilitation of showers, phones, yard and possibly visits are restricted due to unusually low staffing levels, if the circumstances pose a safety risk to officers and offenders.”
The OHRC sought and received the lockdown tracking sheet that TSDC provides to courts for the purposes of criminal sentencing. It states that “during lockdowns inmates are given 30 minutes to complete phone and shower program based on institutional needs and security concerns” and they also “have unrestricted access to medical care.” There is no mention in the tracking sheet of access to the yard, professional visits, public visits or chaplain services during a lockdown.
From our interviews with prisoners and discussions with TSDC staff, we understand that in practice, lockdowns result in prisoners being locked in their cells without regular access to the yard, showers, medical care, phone calls, programs, religious and creed-related services, and/or professional or public visits.
In R v Tewolde, 2020 ONSC 532, the Superior Court of Justice found that lockdowns at TSDC: “have a very significant impact on the conditions of detention. Access to fresh air, showers, exercise, telephone calls to family – all of these can be cut back from the normal 13.5 hours per day to as little as 30 minutes (or less) per day at unpredictable times when a full lockdown is in effect.” Similarly, in R v Jama, 2018 ONSC 1252, the Superior Court found that during a lockdown, prisoners sometimes did not receive a shower, that there were no family visits or telephones, no access to fresh air and no opportunity to exercise creed-related observances.
Use of lockdowns
The OHRC requested and received data from SOLGEN on the use of lockdowns at TSDC. This data shows that while lockdowns are intended to be exceptional and limited to “crisis” situations, they have become a routine management tool at TSDC.
Over a 92-day period from November 1, 2019, to January 31, 2020, the data showed that there were over 200 lockdowns (Table A: TSDC Lockdowns November 2019 – January 2020). In the general population units, there was a maximum of 23 consecutive days of either full or partial lockdown; this number dropped to nine consecutive days for “specialized units.”
Table A: TSDC Lockdowns November 2019 – January 2020
|
Type of lockdowns |
Number of lockdowns |
|
|
|
General population units |
“Specialized” units |
|
Full |
8 |
4 |
|
Partial |
134* |
59 |
* 24 lockdowns affecting all general population units except one
Courts have commented on the frequency of lockdowns at TSDC. Earlier this year, in R v Tewolde, supra, Justice Dunphy stated:
Full or partial lockdowns due to staff shortages are being inflicted upon inmates of Toronto South on a distressingly regular basis. How regular? Mr. Tewolde has been in custody for 533 days. The centre had a record 192 lockdown days affecting his range in the institution as of ten days ago….This means that normal operations of the detention facility where he was held have been materially restricted 36% of the time. That’s considerably more than one week in every month. There is nothing temporary, exceptional or particularly excusable about this deplorable state of affairs.
Other recent cases have found that prisoners are locked down between 30 to 40 per cent of their entire time in pre-trial detention (R v Oskem, 2019 ONSC 6283; R v Fermah, 2019 ONSC 3597).
“Staff shortage” lockdowns
TSDC leadership identified staff shortages as the key “driver” for extensive use of lockdowns. They suggest that insufficient staffing resources make it unsafe to manage prisoners in their living units and justify the use of lockdowns.
TSDC management told the OHRC that the institution requires 650 full-time correctional officers and 200 fixed-term correctional officers to operate safely and securely. As of the OHRC’s tour on January 27, it had 450 permanent, full-time correctional officers and 450 fixed-term correctional officers. The fixed term officers are contracted to provide between zero and 40 hours of service per week. There are clear short-term cost-savings associated with hiring precarious, fixed-term workers rather than full-time, unionized correctional officers.
TSDC told the OHRC that insufficient staffing is the result of:
- SOLGEN’s failure to recruit and retain an additional 200 full-time, permanent correctional officers
- Extensive use of fixed-term correctional officers who do not have on-the-job experience and whose precarious employment status means that they often find more stable and desirable employment outside of SOLGEN
- Correctional officers’ extensive use of “sick days” due to occupational stress-related injuries
- Full-time correctional officers being on long-term leaves due to disability.
Correctional officers noted that high levels of occupational stress, including violence and abuse from prisoners, contributes to use of sick days and long-term disability leaves. They also noted that fixed-term correctional officers do not have sufficient on-the-job training and experience to meet the unique needs of prisoners housed at TSDC.
Howard Sapers, the then-Independent Advisor on Ontario Corrections, explored staffing issues at length in his report Institutional Violence in Ontario: A Case Study of Toronto South Detention Centre (2018). Sapers focused on TSDC because it had the highest number and greatest rate of increase in reported incidents of inmate-staff violence in Ontario corrections in 2017.
Earlier this year, in R v Persad, supra, Justice Schreck of the Ontario Superior Court of Justice canvassed the post-2015 case law on lockdowns at TSDC and noted a number of judicial findings that TSDC lockdowns are related to “staff shortages.” Justice Schreck found:
The fact that nothing has changed despite repeated criticisms by the courts over the course of several years shows the current situation can no longer be excused as a temporary problem. Rather, it appears to be a deliberate policy choice to treat offenders in an inhumane fashion at the cost of harm to the sentencing process rather than devote appropriate resources to the operation of the institution. Put simply, the Ministry has clearly chosen to save money rather than heed judicial concerns about the lack of humane treatment of inmates. In my view, we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct.
TSDC leadership told us that they were hopeful that SOLGEN would address staffing issues in the short term, but could not provide a concrete time frame for when the institution would have adequate and stable staffing resources.
Monitoring and accountability
The OHRC is also concerned that SOLGEN does not appear to track or monitor the use of lockdowns to provide accurate reporting to courts, to identify systemic trends or patterns, or to promote accountability. Instead, the information the OHRC received was compiled based on our request.
Prisoners stated that the information about lockdowns that TSDC provided to the courts for sentencing was often inconsistent with the prisoners’ own records. This concern is supported in the case law, and is of particular concern as it could bring the administration of justice into disrepute.
In R v Tewolde, supra, the Court noted that the accused raised issues about the accuracy and under-reporting of lockdowns at TSDC. In R v Sanchez, 2019 ONSC 5272, the Court relied on the prisoner’s record of lockdowns over the evidence of TSDC leadership, since the latter testified that when there are lockdowns for something other than operational reasons, such as an isolated search or security incident, they are not recorded as lockdowns. In R v Fermah, supra, the Court also noted issues with TSDC’s tracking of lockdowns, and specifically the under-reporting of lockdowns.
As far back as 2017, courts expressed concerns with accuracy and reliability of TSDC’s reporting of lockdowns. In R v Nguyen, supra, the Ontario Court of Justice noted inconsistencies between the prisoner’s records and those of the institution and found that there was a “lack of recording rigour” and “inconsistent reporting.”
SOLGEN told the OHRC that “on January 7, 2020, TSDC implemented enhanced data collection through the Offender Tracking Information System (OTIS) for lockdowns in all units that includes time, date and duration.” This means that lockdowns should now be accurately tracked for each individual prisoner.
Given long-standing judicial concerns about tracking lockdowns at TSDC, and despite recent changes to the tracking system, the OHRC remains alarmed that there is a lack of system-wide tracking of lockdowns.
Systemic concerns
While the OHRC’s findings related to lockdowns are limited to TSDC, the issues canvassed appear to be systemic in nature. For example, the OHRC raised concerns about lockdowns in letters to SOLGEN following tours of Hamilton Wentworth Detention Centre, Kenora District Jail and Elgin-Middlesex Detention Centre.
In his 2018-2019 Annual Report, Ontario’s Ombudsman noted that his office “routinely receives complaints from groups of inmates when they experience a lockdown.” The report states:
We received 483 complaints about lockdowns in 2018- 2019 (up from 437 the previous year), the bulk of which related to inmates lacking access to phones, showers, day rooms or activities. These included 138 complaints from inmates at a facility where a staff work slowdown resulted in several lockdowns, and 60 from the same facility during another period, when staff summer vacations prompted lockdowns.
Many inmates complained that long periods of lockdown were harmful to their mental health, as they were deprived of many basic necessities and the ability to contact loved ones or lawyers. Senior correctional officials confirmed to us that they are forced to place inmates on lockdown when there is a staff shortage. Some facilities work to redeploy staff and rotate lockdowns from unit to unit, to ensure inmates have a chance to leave their cells.
The OHRC also notes that in 2017, the Ontario Superior Court of Justice certified a class action lawsuit challenging the extensive use of lockdowns in Ontario detention centres as unconstitutional, since it deprives prisoners of their rights to liberty and security of the person, is arbitrary, and constitutes cruel and inhuman treatment. The class members are seeking monetary damages.
“Sanctions”
Through interviews with prisoners in general population direct supervision units, the OHRC learned that correctional officers are using “sanctions” to reinforce unit expectations and discipline prisoners for transgressions. Prisoners said that the most common sanction imposed was being locked in their cell for between 24 and 72 hours (with the cellmate’s access to the cell also restricted by being locked out) and loss of visiting privileges. Another less common sanction was loss of canteen.
Prisoners complained that the transgressions for which they could be sanctioned were arbitrary because they changed depending on the officers on duty at any given time. Prisoners reported being punished because of the behaviour of other prisoners on the unit. As one person noted: “every guard has their own rules.”
Legal authority
The Ministry of Correctional Services Act does not provide any legal authority for the use of sanctions and they are not referred to in any SOLGEN policies.
There is also no specific reference to the use of sanctions or similar punishments in the “Inmate Information Guide for Adult Institutions” (Inmate Information Guide) dated September 2015. The guide simply states that “if you do not follow the rules, you may be placed on misconduct.” Under the heading “Misconducts,” the guide outlines specific types of misconduct, potential disciplinary measures and relevant due process protections.
Under the heading “Direct Supervision,” the guide outlines the relevant direct supervision rules and states: “if you break a rule, the Unit Officer will determine the consequences.” No potential consequences or due process protections are outlined.
When the OHRC inquired about the legal authority for the use of sanctions, SOLGEN directed the OHRC to an inmate “Direct Supervision Handbook” (DS Handbook). The DS Handbook lists three classes of rules along with potential “sanctions” for breach of these rules. For Class 2 and 3 violations, the imposition of an appropriate “sanction” is left to the sole discretion of the Unit Officer. For Class 1 violations, the Unit Officer, Sergeant and Administration determine the sanction. The rules and possible sanctions are:
TSDC direct supervision rules and sanctions.
|
CLASS 3 RULES |
CLASS 3 SANCTIONS |
|
If you violate a CLASS 3 Rule, the Unit Officer will determine the Sanction which may include:
|
|
CLASS 2 RULES |
CLASS 2 SANCTIONS |
|
If you violate a CLASS 2 Rule, the unit officer will determine the Sanction which may include:
|
|
CLASS 1 RULES |
CLASS 1 SANCTIONS |
|
The Unit Officer, Sergeant and Administration will determine the Sanction will may include:
|
The OHRC was also directed to a document entitled “Other Direct Supervision Resources” (Other DS Resources) which appears to be geared to correctional officers and states:
All officers must treat clients with justice and fairness. The unit office must be consistent in their treatment of clients and not appear to have favourites.
When determining what sanction to give a client it is important to individualize a sanction. Some clients may find certain sanctions more deterring than others. Make sure the sanction warrants the infraction.
The document sets out possible sanctions and encourages officers to “Be creative” [emphasis original].
The Other DS Resources document notes that all clients who receive a unit sanction other than a warning will have “incentive face-to-face visits revoked for 30 days and will be unable to attend recreation for 14 days.” It also states that officers are expected to “document all Sanctions given on the Behaviour Tracking document found in the Direct Supervision folder” and to “notify the floor Sergeant of all sanctions.”
In relation to lockdowns, the Other DS Resources document states that when imposing 24- or 48-hour lockups/lockdowns as a sanction, officers must complete the “manual segregation tracker.” This seems inconsistent with other information provided by SOLGEN which states that “if a lockdown is imposed as a sanction, and an inmate is out of his cell for a minimum of two hours per day” the sanction will not be considered or tracked as segregation.
SOLGEN did not provide any other documentation that purports to justify the use of sanctions in living units that are not direct supervision units, even though the data from TSDC outlined below shows that sanctions were used in many specialized units.
Use of sanctions
We asked SOLGEN for data tracking how sanctions are being used, including a list of all sanctions imposed over a three-month period. SOLGEN compiled this information from unit logbooks and provided the following data on the use of sanctions at TSDC from November 1, 2019, to January 31, 2020.
Table C shows that during a three-month period, prisoners were sanctioned through lockdowns of varying durations up to 72 hours, whether individually or as an entire unit, on 962 occasions. Warnings were used 494 times, while other sanctions were only used 274 times. These lockdowns were in addition to lockdowns of entire units that were tracked and noted above.
Table C: Lockdown sanctions by duration (November 1, 2019 – January 31, 2020)
|
Unit |
Lockdown sanctions by duration |
|||||
|
Less than 24 hours |
24 hours |
48 hours |
More than 48 hours |
72 hours |
Unknown duration |
|
|
Direct supervision |
118 |
286 |
78 |
50 |
1 |
49 |
|
Intake |
29 |
93 |
47 |
38 |
0 |
38 |
|
Behavioural |
0 |
14 |
8 |
0 |
0 |
0 |
|
Mental health |
7 |
3 |
9 |
2 |
0 |
2 |
|
Medical (direct supervision) |
1 |
17 |
3 |
10 |
0 |
10 |
|
SCUB |
2 |
11 |
7 |
2 |
0 |
2 |
|
SHU |
0 |
14 |
3 |
4 |
0 |
4 |
|
Subtotal |
157 |
438 |
155 |
106 |
1 |
105 |
Table D: Other sanctions (November 1, 2019 – January 31, 2020)
|
Units |
Other sanctions |
||||
|
|
Locked out of cell |
Secured in cell |
Segregation |
Warning |
Other (loss of privileges) |
|
Direct supervision |
95 |
4 |
1 |
235 |
90 |
|
Intake |
0 |
2 |
4 |
77 |
13 |
|
Behavioural |
0 |
0 |
2 |
19 |
5 |
|
Mental health |
0 |
26 |
0 |
33 |
8 |
|
Medical (direct supervision) |
0 |
0 |
1 |
14 |
6 |
|
SCUB |
0 |
0 |
0 |
11 |
7 |
|
SHU |
0 |
3 |
1 |
105 |
6 |
|
Subtotal |
95 |
35 |
9 |
494 |
135 |
Family and community contact
According to SOLGEN, visits generally take place using video technology wherein the visitor attends the public area of TSDC and videoconferences with the prisoner who remains on their unit. Video visits are available up to four times per week but are cancelled during lockdowns.
Many prisoners said that they find the video visits impersonal and only marginally preferable to phone calls. Since visitors must still attend TSDC to participate in video visits, and are turned away if there is a lockdown, some prisoners said that their family and friends have stopped visiting. Prisoners with children noted that the video visits are not conducive to maintaining parent-child interactions and relationships. One TSDC staff member candidly acknowledged that video visits “suck.”
Face-to-face visits through a glass partition can be arranged. However, staff noted that these were only available as a “reward” for good behaviour. The “Face to Face Visit Incentive” form notes that to be eligible for a face-to-face visit the prisoner must have:
- Been in a direct supervision housing unit for at least 30 days
- A positive history of following staff direction and unit rules
- A history of above-satisfactory cell inspections
- Completed their cleaning duties to expected standards and without staff direction
- Gone at least 30 days without a sanction or misconduct.
Given these pre-conditions, including the high rate of lockdowns and sanctions at TSDC, it is not surprising that face-to-face visits are relatively infrequent. Between November 2019 and January 2020, there were 10,970 video visits and only 333 face-to-face visits. After our tour, SOLGEN told us that “face-to-face visits are in the process of being expanded to provide more opportunities for inmates in the Direct Supervision Units to be rewarded for positive behaviour.”
Prisoners also noted several difficulties in terms of staying in touch with family and friends by telephone. Prisoners can only make collect calls to land lines and cannot use calling cards. This effectively means that many people cannot afford or access their families by phone on any regular basis. Moreover, there are only two phones on each living unit and we were told that there is a prison hierarchy in terms of who is allowed to access the phones and for how long.
Given the importance of family and community connection to rehabilitation and reintegration, as well as the legal duty to accommodate family status to the point of undue hardship, we are concerned about the significant obstacles that prisoners face when trying to maintain pro-social relationships with their families and children.
Finally, it is worth noting that the relative absence of opportunities to meaningfully engage with people outside of the jail is reinforced by the physical structure of TSDC. All external windows are frosted, which makes it impossible for prisoners to see outside. The “yards” on each unit are artificially-lit rooms with concrete floors, walls and ceilings and panels that allow fresh air into the space but do not permit prisoners to see outside.
Health and safety
Hygiene and sanitation
For the most part, TSDC appeared clean and well-maintained. A notable exception was the shower areas which had visible black mold, a foul smell and were infested with sewer or drain flies. Because TSDC was built as a public-private partnership, maintenance is contracted to a private third party and we heard that there are significant delays in rectifying maintenance-related concerns.
Beyond the building itself, nearly all the prisoners we spoke to expressed concerns about infrequent changes of bedding and clothing, especially socks and underwear. Several prisoners also complained about lack of access to adequate blankets to keep warm. One prisoner wrote us after our visit to outline these concerns in extensive detail.
Documents received from TSDC confirm that several items, including underwear and socks, are on back-order from the supplier. However, SOLGEN maintained that while there may be “unique circumstances” where there is insufficient supply to provide a change of clothing, “there are no circumstances that management can identify where the same individual/unit would miss being provided with changes of items such as socks multiple times in the same month.”
Public health
We also heard about scabies in the institution. One prisoner wrote to tell us that after his unit was initially quarantined for scabies, he was screened, tested negative and then returned to the same unit where he eventually contracted scabies. Over the next 13 months he was treated for scabies on eight occasions. The prisoner claimed that he did not receive adequate changes of bedding or clothing as per SOLGEN’s “Scabies Management Policy.” There are likely some lessons to be learned here in relation to the management of COVID-19 within TSDC.
Medical care
Staff gave us extensive information about the medical services available at TSDC, including mental health, health, dental and nursing services. We also toured the medical unit and infirmary, which appeared clean and well-equipped.
That said, prisoners uniformly complained both about the accessibility and quality of medical care at TSDC. It is hard to assess these claims since we did not access individual health files. Based on information provided by TSDC, the wait times for 20 “randomly selected” inmate medical files showed that wait times were 10 days or less, and significantly shorter for newly admitted prisoners.
Accommodating creed-related needs
We were able to visit the pilot “Indigenous Healing Unit” which SOLGEN states is “a dedicated unit that provides a safe place to practice Indigenous cultural ceremonies and teachings” facilitated by a Native Inmate Liaison Officer (NILO). We understand that this pilot project is unique to TSDC and is not offered in any other Ontario correctional facility.
Overall, we were impressed with this holistic approach to accommodating the creed and cultural needs of Indigenous prisoners. During our visit, OHRC staff took part in a sharing circle with prisoners, the NILO and correctional officers. During the circle, prisoners connected their experience of incarceration with colonization and inter-generational trauma. We were able to close the circle with a smudge led by one of the prisoners.
While appreciative of the opportunities provided on the Indigenous Healing Unit, many of the prisoners, as well as the NILO, noted the need for the guidance and teachings of an Indigenous Elder. We understand that TSDC has issued a “request for Elder services” and been approved for the same. We hope that these services will be put in place as soon as possible to further deepen the opportunities available to Indigenous prisoners.
In our interviews with other prisoners, we were told about unequal and inconsistent access to smudging kits. TSDC notes that “smudge kits are currently provided to five units” and that while additional supplies have been received, they are in the process of reviewing their ability to provide kits for all other units.
Finally, some prisoners noted that there was no regular access to an Imam for Muslim prisoners. Given the high proportion of Muslim prisoners at TSDC, we encourage SOLGEN to make arrangements for regular visits by an Imam.
Community oversight
Community Advisory Boards (CABs) established under s. 14.1 of the Ministry of Correctional Services Act play an important role in increasing transparency and accountability through submitting an annual report to the Minister.
We note that the terms of the two members of the TSDC CAB who accompanied us on our tour were not renewed and that only two members remain (with their terms expiring on March 16, 2020). As a result, we were told that the TSDC CAB did not have the required quorum to submit a report for the 2018 – 2019 year. We sought, received and reviewed the 2015 – 2017 CAB reports submitted to SOLGEN.
We encourage SOLGEN to work collaboratively with its CABs and to draw on their unique insights to improve conditions of confinement for prisoners and working conditions for front-line staff.
Conclusion
The OHRC thanks SOLGEN for facilitating its tours and access to information about TSDC. As always, we welcome the opportunity to discuss our findings and concerns with SOLGEN leadership.