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Province should move toward elimination of segregation in prisons

A new report that scrutinizes the practice of segregation in Ontario prisons and provides recommendations on how solitary confinement should be used doesn’t go far enough, as the province should be moving toward eliminating the practice altogether, Toronto criminal lawyer Breese Davies tells The Lawyer’s Daily.

As the article notes, the interim report from Howard Sapers, Independent Advisor on Corrections Reform, contains a number of recommendations including a 15-day cap on placements in solitary confinement; a ban on the use of solitary confinement for suicidal inmates or those who have been diagnosed with a severe mental illness; independent officers to oversee solitary confinement placements, renovations of a number of facilities and a ban on pregnant women and inmates with medical conditions being placed in solitary.

“I’ve been locked in a segregation cell and it’s horrible, but I also knew that when I knocked on the window someone would let me out because I was there as a lawyer,” Davies, principal of Breese Davies Law, says in the article.

“What I can’t imagine is being put into a segregation cell never knowing when that was going to end.”

Davies, who was counsel in the coroner’s inquest into the death of Ashley Smith who died of self-inflicted strangulation while at the Grand Valley Institution for Women, visited the prison to see the conditions in which Smith was being detained when she died. Davies says she asked to be locked in the cell alone, so she could feel what segregation was like.

“Every time I go to a prison I’m reminded of the fact that I’m incredibly lucky because I get to leave,” she says.

“I get let in and I get to observe what’s going on because of my position as a lawyer — but then I also have the right to leave. With that right to leave, I think comes an obligation on those of us who actually go into institutions to speak about what’s going on in them, to take on the issues, and to try and make the conditions better.”

In terms of the interim report, Davies says: “We should not be satisfied with laws that simply prevent correctional services from engaging in behaviour that the U.N. has said can constitute as torture.

“We should actually be moving towards eliminating segregation altogether because the one thing I think this report makes clear — and certainly if you read this report in conjunction with the ombudsman’s report that was recently released — is that correctional services cannot be trusted to manage policies and rules around the use of segregation.

"If you allow them to use segregation they will find workarounds on how to keep people in segregation for long periods of time. They’ll call it something else. They’ll redefine things. They’ll come up with ways to get around the reviews. If you allow them to use it, it will continue to be the default. My view is we have to be moving towards complete elimination of the use of segregation,” she adds.

Davies tells The Lawyer’s Daily that Sapers’ recommendations should be used during a transition period while the government works toward banning segregation.

“There are a whole bunch of things you need to do in order not to rely on segregation as the easy solution,” she says.

“First of all you have to actually have health care facilities, because someone who is sick should not be segregated. You need to not imprison mentally ill people.

"If someone had a heart attack in a jail the answer would not be to put them in segregation until they recovered. They would be sent to a hospital where they would be treated and they would recover and then they would be brought back into the institution.

"We have to start treating mental health as the same sort of issue and we don’t because they take them out of general population and they say ‘you’re difficult to manage, so we’ll just put you in segregation.’”

Women who are pregnant or have children while they’re in custody should also have proper facilities, says Davies, who adds that programs to keep inmates engaged would also reduce "management issues."

“Obviously there are moments in time when inmates need to be separated from one another for protection reasons, but you can always find a solution that does not involve locking someone in a cell for 23 hours a day,” she says.

“Right now we have a culture where that’s the go-to solution. As the ombudsman said, it’s meant to be the last resort, but it’s usually the first and only resort when there [are] some issues that the institution deals with that [are] problematic to manage.

"In my view, the Ministry of Correctional Services has proven itself incapable of managing itself in a way that complies with human rights and we should not let them use it [segregation],” says Davies.

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