John Michael McGrath
April 24, 2017
The most important thing to know about last week's report from provincial Ombudsman Paul Dubé isn’t that he's highlighted the terrible state of Ontario’s correctional centres, their over-reliance on solitary confinement (officially known as segregation), or the multiple horror stories of people forgotten by an uncaring system.
It’s a single sentence, early in the report: “My findings will not be news to the Ministry.”
Dubé writes that multiple front-line corrections officers admitted, in the course of his investigation, that the province’s system for tracking inmates — including, crucially, how long someone has been held in solitary — is woefully inadequate, and the system of reviewing when to release inmates back into the general prison population is largely a sham. This most recent report comes after reports last year both from his office and from the Ontario Human Rights Commissioner that found the province was keeping too many people in solitary for too long.
And it's a systemic problem in prisons across the province, not a case of one isolated institution or a few headline-making cases.
The United Nations says the use of solitary confinement for more than 15 days can constitute “torture or other cruel, inhuman or degrading treatment or punishment.” But for starters, the provincial government doesn't even have a clear definition of what “segregation” means. Dubé doesn’t propose to write it for them, but stresses one is desperately needed: corrections officers need some clarity about what counts as segregation is before they can, for example, accurately count the number of days someone has been kept in it.
Naturally, the problems only get worse for inmates once they’re actually in solitary. The majority of cases aren’t punishment — that is, in response to prisoner misconduct once they've been incarcerated. Rather, “administrative” segregation can be for the inmate’s own protection or to keep order in the prison. Only 2 per cent of cases see a prisoner in segregation for their own misconduct. But Dubé has found the government relies on administrative segregation to explain too much: it needs to address why it can’t keep prisoners safe without resorting to solitary, for example.
Prisoners who ask to be put in solitary confinement for their own safety may also find themselves facing inappropriately harsh conditions, because prisons aren’t built to distinguish between different reasons for segregation.
“Regardless of the reason why an inmate is in segregation, it should always be considered a last resort,” Dubé says.
If all that wasn’t enough, the government isn’t properly tracking the length of time inmates are being kept in solitary. Because sometimes terrible things have prosaic explanations, some inmates in segregation, for instance, were getting filed in provincial databases as being held in the general prison population because the computer system’s drop-down menus were difficult to navigate (Dubé notes the government improved its software use during his investigation, but make recommendations for further improvement.)
And when the government reviews the cases of people in segregation, things are similarly a mess. The ombudsman found one case of a woman with an acknowledged mental health issue who had been held in segregation for 26 days, only to have staff check the boxes for both “yes” and “no” on the form asking whether the inmate had mental health issues the prison had to accommodate. In multiple cases Dubé’s office found errors in paperwork that prison staff then corrected.
Some form of solitary confinement is likely to be part of the prison system for the forseeable future, Dubé acknowledges: at a minimum, prisons will continue to need a way to protect potentially violent inmates from one another, and whatever the government calls it, that’s likely to look a lot like solitary confinement. The immediate problem is that the current system is a mess rife with problems from beginning to end.
The ombudsman's report makes a number of relatively straightforward recommendations, from more data-gathering to improved training for corrections officers and more proactive management from senior ministry staff, to ensure that cases aren’t slipping through the cracks. He is also calling for the government to create a review panel to oversee all cases of segregation every five days, including giving inmates legal representation and putting the burden proof on the corrections centre to show why segregation should continue. Improved training and software are nice, but systematic oversight is better — but also harder.
The ombudsman told reporters last week he was reluctant to put the blame on funding, but it’s hard to avoid the conclusion that it’s at minimum a major contributing factor. For example, Dubé found multiple prisons where women were being held in segregation because there was no separate facility to house them, and because the ministry didn’t act to move them somewhere they could be held safely outside of solitary. The alternatives of building new facilities or moving inmates to safer existing ones all cost money.
The government has, of course, been trying to restrain spending for several years, and provincial prisons have felt that as much as anything. Dubé’s office has been monitoring segregation since 2013, and for most of that time the government has been dealing with complaints from correctional officers that their numbers are too small to handle overcrowded prisons. The province spent much of 2015 trying to reach an agreement with the union representing correctional officers — a deal that was hard to reach while the government was also trying to keep costs low — and averted a strike by agreeing to hire 150 more guards province-wide last year. The government has also hired mental health nurses, social workers, and psychologists in the past year. A greater number of trained mental health professionals may mean the system will need to rely less on segregation in future.
The government has committed to implementing all of Dubé’s recommendations, but that’s going to take time — certainly more than six months, which is when Minister of Correctional Services and Community Safety Marie-France Lalonde has committed to reporting back on the government’s progress.
It’s also going to take concerted, continuous effort. Prisoners are not exactly a prized demographic that political parties cater to, and despite the constitutional requirement to respect their rights while incarcerated, few governments ever make prisoner care a priority. Doing so is expensive, and substantial oversight of the kind Dubé calls for is frequently uncomfortable, because it uncovers cases like that of Adam Capay last year. But those are precisely the reasons Ontario is mired in the status quo, not reasons to avoid doing better.