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

June 4, 2021

Introduction

On April 23, 2021, Ontario’s Ministry of the Solicitor General (the Ministry) announced proposed amendments to Regulation 778 under the Ministry of Correctional Services Act, which governs the operation of Ontario’s adult correctional institutions. The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the proposed amendments.

The Ministry is proposing to amend regulations on segregation, discipline and misconduct practices, and to create mandatory training requirements.[1] This submission primarily focuses on the segregation amendments.

The OHRC supports the proposed amendments for stricter restrictions on segregation use, including:

• A 15-day cap for any continuous segregation placements
• Restricting segregation to 60 aggregate days in a calendar year
• Prohibiting segregation for people with serious mental illness.

These crucial protections are in line with the OHRC’s recommendations, and are critically necessary to protect people’s Human Rights Code (Code) and Charter rights.

The OHRC also believes there are areas where the proposed amendments are insufficient for protecting prisoners’ rights or meeting the government’s human rights and constitutional obligations.

The OHRC recommends several additional steps for the Ministry to take to make sure that amendments to its regulation result in effective and meaningful change. These recommendations are based on the OHRC’s extensive experience advocating for corrections and segregation practices that meet obligations under the Code, the Charter and international law. [2]

1. The Ministry should remove the proposed exceptions to the 15- and 60-day limits on long-term segregation.
2. The scope of the prohibition on segregation for persons with mental health disabilities should be developed in consultation with experts and community stakeholders, based on evidence of the harmful effects of segregation.
3. The prohibition on segregation should be expanded to include other particularly vulnerable groups, including prisoners who:
   
   1. Are pregnant or have recently given birth
   2. Are chronically self-harming or suicidal
   3. Have an intellectual and/or communication disability
   4. Need medical observation
   5. Have a mobility impairment.
4. The Ministry should establish an external and independent review process for all segregation decisions.
5. The regulations should make sure that prisoners and staff are fully informed of the rules governing the prisoner discipline and misconduct process, including clearly identifying permissible and impermissible sanctions.
6. The Ministry should rescind any policy or practice of restricting family phone or face-to-face visits as a sanction for misconduct, and amend Regulation 778 accordingly.
7. The Ministry should expand its proposed collection of discipline and misconduct data to include:
   
   1. Disaggregated human rights information
   2. Public reporting of that data.
8. The regulation should require the Ministry to analyze its misconduct and discipline data on a staff-level basis to monitor and track any patterns and make sure the mandatory training it is implementing results in improved outcomes.
9. Ontario should take any legislative or regulatory steps that are necessary to establish an independent oversight body for corrections.

 

1.The OHRC supports amendments to impose strict time limits on segregation placements

The Ministry is proposing that Regulation 778:

• Set a 15-day limit on consecutive days in administrative segregation (which already exists for disciplinary segregation)
• Require a five-day break from placement in segregation conditions if the 15-day limit has been reached
• Set a 60-day limit on the number of aggregate days in segregation in the most recent 365-day period for both administrative and disciplinary segregation.

The proposed amendments requiring a five-day break and a 60-day aggregate time limit both include an exception that would allow segregation to continue to be used “if other options are exhausted and the Superintendent has reasonable grounds to believe placement in segregation conditions is needed to address immediate safety or security concerns.”[3]

The OHRC has long called for and supports the amendments for the 15-consecutive-day and a 60-aggregate-day limit on segregation placements, and to require a five-day break from segregation conditions after any 15-day placement. These time limits are necessary to make sure Ontario’s segregation practices are constitutionally compliant and avoid the serious harms of long-term segregation that have been recognized by the Court of Appeal for Ontario.[4]

Data supports the importance of establishing these time limits. The most recent 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. The Ministry’s most recent 2019–2020 segregation data showed that there were more than 2,700 segregation placements that lasted more than 15 days.[5] The need for strict time-limit safeguards is underscored because vulnerable Code-protected groups, including people with mental health and physical disabilities, women, and Indigenous prisoners, are disproportionately affected by segregation.[6]

While the OHRC fully supports the proposed amendments for strict time limits, it is concerned about the exceptions allowing a superintendent to deviate from the requirement to ensure a five-day break after a 15-day segregation placement, or to allow a prisoner to spend more than 60 aggregate days in segregation in a year.

Given its experience in advocating for eliminating segregation for people with mental health disabilities, it is the OHRC’s view that creating this exception will likely amount to it becoming the rule. The OHRC’s experience with the Jahn litigation supports this view.

In Jahn, the OHRC and Ontario agreed back in 2013 that Ontario would amend its policies to make sure “segregation for inmates with mental illness shall not be used unless the Ministry can demonstrate that alternatives to segregation have been considered and rejected because they would cause undue hardship.” It is highly problematic that seven years later, the Ministry’s own data shows that almost 50% (11,071 of 22,665) total segregation placements in the previous year still involved prisoners with a mental health alert.[7]

Illustrative of this serious concern, the Court of Appeal recently upheld the Superior Court’s decision in Francis v Ontario, which found that “Ontario was frequently non-compliant with its own policy requirement to consider alternatives to administrative segregation to the point of undue hardship.”[8] 

This experience shows that segregation policies that leave room for exceptional acts of discretion are unlikely to remain exceptional when put into operation and risk abuse of the process.

To the extent that safeguards must be put in place to ensure institutional security, the 15- and 60-day limits provide officials with sufficient opportunity to make arrangements to safely meet the needs and Charter rights of prisoners.

For these reasons, the OHRC recommends that the proposed amendments not include an exception to the 15- and 60-day limits.

Finally, while the OHRC does support these time limits, we strongly reiterate our position that the Ministry should ultimately be moving towards correctional reform that eliminates the use of segregation altogether.[9]

OHRC Recommendation 1: The Ministry should remove the proposed exceptions to the 15- and 60-day limits on long-term segregation.

 

2.Segregation should be prohibited for all people with mental health disabilities and other particularly vulnerable Code groups

The Ministry is proposing that Regulation 778 be amended to prohibit segregation for people with a serious mental illness. The Ministry has proposed a definition of “serious mental illness” that requires diagnosis with a mental health disorder from a set list, combined with at least one particular symptom, as set out in another defined list.

While the OHRC fully supports amending the regulation to prohibit segregation for people with serious mental illness, its view is that:

1. The proposed scope of the prohibition on segregation for persons with mental health disabilities should be developed in consultation with experts and community stakeholders, based on evidence of the harmful effects of segregation
2. Segregation should also be prohibited for other particularly vulnerable Code-protected groups.

 

1. The proposed scope of the prohibition on segregation for persons with mental health disabilities should be developed in consultation with experts and community stakeholders, based on evidence of the harmful effects of segregation.

The proposed definition appears to provide the absolute minimum protection the Ministry could possibly argue is constitutionally compliant under the Court of Appeal’s decision in Francis v Ontario. However, the strategic litigation choices of a single legal proceeding should not determine government policy. The fact that the definition of the class in that litigation was limited in this way does not mean that persons falling outside that definition do not experience equivalent harm that would amount to a breach of the Charter.

The serious harm that segregation causes to persons with mental health disabilities has been repeatedly documented, and the Ministry’s regulation should be based on evidence of that harm.

In fact, the proposed definition of “serious mental illness” fails to meet the Ministry’s pre-existing legal obligations under the Jahn v MCSCS settlement agreement, and the OHRC v Ontario Human Rights Tribunal of Ontario order. The order requires the Ministry to make sure that: a) all prisoners with “mental health disabilities” have a mental health alert, and b) segregation will be prohibited for any person with a mental health alert barring undue hardship.[10]

The group of people who should have a mental health alert and consequentially be prohibited from being placed in segregation under the Order is therefore much broader than the proposed definition of “serious mental illness,” and includes all people with mental health disabilities. This more inclusive definition of mental health disability recognizes the serious harm that can result from the adverse impact of segregation on a broad variety of mental health disabilities.

Accordingly, any definition related to prohibiting segregation for persons with mental health disabilities should be developed in a fully transparent, evidence-based way, in consultation with mental health experts and community stakeholders, including those with lived experiences. A clear, evidence-based definition of those mental health disabilities where segregation must be prohibited is necessary to ensure full compliance with the Code and Charter.

In the summary of the amendments being considered, the Ministry’s description does not even include the full definition being proposed – which interferes with the ability for stakeholders and experts to comment. The public and stakeholders should have clear information on the Ministry’s process for developing the definition, and should be confident that it is evidence-based and informed by mental health experts and community stakeholders.

The OHRC recognizes the challenges involved with setting out a clear definition, but this is why the Ministry must approach this task with great care. The serious harm that segregation can cause for prisoners with mental health disabilities, and the resulting violation of their rights, means both the process in determining the appropriate definition and the nature and the scope of the prohibition must be undertaken in a careful and consultative way to be credible.

In accordance with human rights principles of accommodation, the definition must also reflect that mental health services are limited in a corrections setting. The apparent requirement for both a diagnosis and exhibiting a particular behaviour is too narrow to ensure that the rights of all prisoners with mental health disabilities are protected.

OHRC Recommendation 2: The scope of the prohibition on segregation for persons with mental health disabilities should be developed in consultation with experts and community stakeholders, based on evidence of the harmful effects of segregation.

 

2. Regulation 778 should also be amended to prohibit segregation for other particularly vulnerable Code-protected groups

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 and/or communication disability; need medical observation; or have a mobility impairment.

The OHRC, correctional experts[11] and the Ontario Legislature[12] have repeatedly identified the need to also prohibit segregation for these groups. Accordingly, the OHRC calls on Ontario to also amend Regulation 778 to provide additional protections for particularly vulnerable groups.

OHRC Recommendation 3: The prohibition on segregation should be expanded to include other particularly vulnerable groups, including prisoners who:

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

 

3.The proposed amendments will not establish a truly independent segregation review process

The Ministry is proposing that disciplinary segregation also be subject to the same review process that was implemented for administrative segregation in November 2019. That amendment to Regulation 778 required that all administrative segregation placements be reviewed by the Minister every five consecutive days that someone is held in segregation.[13] The regulation states that the Minister’s responsibility for these reviews can be delegated, but not to a superintendent or other related staff.[14]

The commentary accompanying the proposed amendment suggests that this process will be “independent” because the review is conducted by Ministry staff outside the institution and by someone who is not a superintendent or someone reporting to or involved with the superintendent’s segregation decisions and reviews.[15]

This approach is not enough to protect prisoners from the harms of either disciplinary or administrative segregation. This type of segregation review has repeatedly been found insufficient in terms of providing meaningful oversight 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 and the HRTO’s OHRC v Ontario order, 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.[16] 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.[17]

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

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

The OHRC has been calling for external review of administrative and disciplinary segregation for years. In its January 2016 submission to the Ministry’s Provincial Segregation Review, the OHRC considered the review process, which included reporting to the Assistant Deputy Minister, and concluded that external review was necessary.[18]

Since then, the OHRC has repeatedly reiterated its recommendation that segregation placement decisions must be subject to external and independent review, including judicial oversight.[19]

The Ombudsman of Ontario and the 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 concluded that the 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.[20]

Like the OHRC, the Ombudsman determined that this internal review process alone was insufficient, and recommended that the Ministry implement a more robust system to independently review segregation placements.[21]

More recently, the Final Report of the Independent Reviewer on the Ministry’s compliance with the Jahn settlement and consent order also found that Ontario’s internal segregation review process is flawed and that external review is necessary to protect human rights.

The final report analyzed Ontario’s internal segregation review practices (which include ADM and Minister review). It found that the Ministry’s own internal review processes were not being complied with and described them as “pro forma exercises.” The report recommended that persons reviewing segregation decisions be independent, and external to the Ministry.[22]

 

2. R v Capay and other legal decisions confirm that internal segregation reviews are inadequate in Ontario’s correctional system

The Ministry’s proposal to limit the review of administrative and disciplinary segregation to people within the Ministry appears to be based on the finding of Justice Marrocco in CCLA v Canada that independent review could be conducted by corrections officials outside a specific institution.[23] However, more recent cases addressing segregation in Ontario have shown that the internal review process does not adequately protect the rights of prisoners.

In 2019, in R v Capay, the Ontario Superior Court of Justice confirmed that Ontario’s system of internal segregation review is broken and inadequate.[24] In finding 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.”[25] Based on the evidence, the Court concluded 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.[26]

Officials at both the institutional and regional level testified they were unable to recall “a single occasion” where continued segregation was not supported at the regional level.[27] 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.[28]

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.”[29] The Court also found that the misconduct in the case before it was “not isolated” and the “inadequacy and ineffectiveness of the segregation review process in Ontario has been a long standing and ongoing problem.”[30]

In Francis v Ontario, the Court was not called on to determine whether external segregation review was constitutionally necessary. Nonetheless, in finding a class-wide breach of the Charter s. 7 due process rights of prisoners, the Superior Court relied on the “abhorrent history of the failures to review Mr. Capay’s placement in administrative segregation” as described in Capay, as well as the reports and studies highlighted above that have shown that internal Ministerial review is deeply flawed, and that external review is necessary.[31]

Simply put, courts and experts across the country have repeatedly recognized that segregation review will not be independent or effective if it fails to provide for external oversight.[32]

 

3. Internal reviews fail to provide meaningful independent oversight of segregation

The review process for administrative segregation established in 2019 amendments to Regulation 778, which is now being proposed for disciplinary segregation, does not and will not provide the independence needed to make sure segregation oversight is objective, robust and consistent with the high standard of procedural fairness required for such decisions under the Charter.

The OHRC calls on Ontario to amend Regulation 778 to include a truly independent, external segregation review and oversight process for both disciplinary and administrative segregation.

OHRC Recommendation 4: The Ministry should establish an external and independent review process for all segregation decisions.

 

4.Discipline and misconduct

1. Prisoners and staff should have the same understanding of the rules, appropriate sanctions, and the discipline and misconduct process

The Ministry is proposing to amend Regulation 778 to require that the rules relating to prisoner misconduct be provided in writing, they be provided to people in custody as soon as practicable on admission, and be accessible following admission.

The OHRC supports these changes. However, they should be expanded to make sure the information provided informs prisoners and staff of all sanctions that are acceptable, and the process that must be followed for staff to implement any disciplinary measures.

Also, there should be clear communication to all prisoners and staff about sanctions that are not permitted.

In the OHRC’s view, the regulation should make sure all prisoners and staff are operating with the same understanding of the rules, the potential consequences for violating those rules, and the due process protections that exist.

OHRC Recommendation 5: The regulations should make sure that prisoners and staff are fully informed of the rules governing the prisoner discipline and misconduct process, including clearly identifying permissible and impermissible sanctions.

 

2. Restricting access to phone or face-to-face visits with family members should not be a permissible sanction

Given the importance of family and community connections to mental health well-being, rehabilitation and reintegration, as well as the legal duty to accommodate family status to the point of undue hardship, the OHRC is concerned about the significant obstacles prisoners face when trying to maintain pro-social relationships with their families and children. Also, the United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the “Mandela Rules”) state that restricting family contact should not be permitted as a disciplinary measure.[33] The Ontario Court of Appeal has held that the Mandela Rules are an authoritative interpretation of international rules.[34]

Despite this, the OHRC is aware that SOLGEN has a document called “Other Direct Supervision Resources” that states that all “clients” who receive a unit sanction other than a warning will have “incentive face-to-face visits revoked for 30 days.”[35]

The OHRC submits that Ontario should rescind this practice and amend Regulation 778 to expressly prohibit the restriction of family phone or face-to-face visits as a sanction for misconduct.

OHRC Recommendation 6: The Ministry should rescind any policy or practice of restricting family phone or face-to-face visits as a sanction for misconduct, and amend Regulation 778 accordingly.

 

3. The Ministry’s proposed statistical reporting on discipline and misconduct should include publicly available disaggregated human rights-based data

Because of systemic racism and discrimination, we know that Code-protected groups can be disproportionately subjected to and disadvantaged in discipline and misconduct practices/sanctions. The Ministry’s proposed amendments to require mandatory systemic racism training shows important recognition of this and the need to address it.

One of the most important means of making sure systemic racism and discrimination in discipline and misconduct processes are fully addressed is to collect human rights-based data.

The OHRC toured Toronto South Detention Centre in January and February 2020. At that time, we heard concerns from prisoners about disciplinary sanctions. We asked the Ministry for data tracking how sanctions were being used, including a list of all sanctions imposed over a three-month period. The Ministry did not already have this information available, but had to compile this information for disclosure to the OHRC from unit logbooks.[36]

Organizations have an obligation to ensure that they are providing their services in a way that is consistent with the Code. A failure to collect and analyze the data available to it creates the risk that the Ministry will engage in discriminatory conduct, contrary to the Code. As a public body the Ministry should act transparently by publicly reporting on this data to show that its misconduct and discipline processes are being followed in a fair and equitable manner.

Accordingly, while we are pleased that some efforts are being made to establish “quarterly statistical reporting” on the outcomes of formal and alternative disciplinary processes, that process should include human rights data and should be made publicly available, to make sure that systemic racism and discrimination within the disciplinary system can be identified and remedied in a timely way.

OHRC Recommendation 7: The Ministry should expand its proposed collection of discipline and misconduct data to include:

1. Disaggregated human rights information
2. Public reporting of that data.

 

5.Mandatory training

The OHRC supports amendments to Regulation 778 that would require staff to undergo de-escalation, human rights and systemic racism training.

However, the goal of training is not the training itself, but the outcomes it is intended to produce. An effective human rights training regime must be linked to measurable improvements and human rights data to make sure the training is resulting in the improved treatment of prisoners.

The regulations should establish a data collection regime that is able to measure the effectiveness of training towards outcomes that reduce disparities in meting out discipline and segregation to Indigenous, Black, other racialized and other vulnerable groups. For this to happen, it will be necessary to link human rights data on misconduct, alleged misconduct, discipline, segregation and prisoner complaints with staff conduct and participation in training.

Such “Early Intervention Systems,” which have been implemented in the policing context, can play an important role in assisting managers and the Ministry in identifying discriminatory conduct that needs to be addressed.

OHRC Recommendation 8: The regulation should require the Ministry to analyze its misconduct and discipline data on a staff-level basis, to monitor and track any patterns and make sure the mandatory training it is implementing results in improved outcomes.

 

6.Ontario corrections needs to have independent external systemic oversight

Ultimately, if Ontario is to achieve its goal of making its practices constitutionally compliant and addressing the harms of segregation and systemic discrimination, it must adopt some form of independent oversight of the correctional system as a whole.

Such oversight is necessary to ensure compliance with restrictions on segregation – and to make sure there is someone in a position to effectively monitor conditions on the ground and to collect and assess data, so the government and the public can know whether correctional policies are being effectively implemented.

In his recent report on implementing Structured Intervention Units in federal prisons, Anthony Doob said independent monitoring and oversight are necessary to make sure restrictions on segregation do not end up resulting in “segregation-by-another-name.”[37]

Similarly, the Final Report of the Independent Reviewer in the Jahn settlement emphasized the need for external oversight to address concerns across the entire system – including the treatment of prisoners with mental health disabilities, and collecting and analyzing human rights data.

Establishing an independent oversight body is essential for protecting the Code and Charter rights of prisoners, and to assure the public that Ontario is doing everything it can to operate the corrections system in a fair, humane and effective way.

While the Ministry may take the position that establishing an independent corrections oversight body is beyond the scope of its regulatory powers, experience shows that in corrections, regulatory changes cannot be expected to be truly effective without such oversight. Accordingly, Ontario should take all possible steps to implement an independent oversight system, whether it be regulatory or legislative.

OHRC Recommendation 9: Ontario should take all possible legislative or regulatory steps to establish an independent oversight body for corrections.

 

7.Conclusion

Experts, international authorities and courts across Canada agree that segregation causes significant and permanent harm. Ontario’s proposed regulatory amendments put in place some important safeguards to limit this harm – like the strict time limits. The OHRC welcomes these changes.

However, more still needs to be done to make sure Ontario’s correctional reform is successful and achieves meaningful change.

In addition to the recommendations set out above, we encourage the Ministry to work closely with the OHRC while further developing these regulatory amendments. The OHRC has worked closely with the Ministry on many occasions on correctional and policing legislation and regulations, and believes that those processes have been helpful for all parties.

The OHRC would welcome the opportunity to review draft language and provide ongoing input and advice as this process moves forward.