Michael Ford (post until Oct. 31/19)

Lawsuit over solitary confinement in Ontario jails certified as class action


TORONTO — A lawsuit alleging the Ontario government violated the rights of inmates by placing them inappropriately in solitary confinement can proceed as a class action, a Superior Court judge has ruled.

The province did not oppose certification of the $600-million action whose representative plaintiff maintains his already fragile mental health was exacerbated by stints in segregation.

The suit includes inmates diagnosed with severe mental illnesses such as schizophrenia or psychosis who served time in segregation in provincial facilities since Jan. 1, 2009. Other inmates put in the ``hole'' for 15 days or longer since that time are also included in the class.

``Every day, prisoners in Ontario's correctional institutions are subjected to conditions of torture, and cruel, inhuman or degrading punishment,'' the suit alleges in its amended statement of claim. ``Segregation, or 'solitary confinement' as it is more commonly known, is grossly overused on a systemic basis throughout Ontario's correctional system.''

In an interview with AdvocateDaily.com, London criminal lawyer Carolynn Conron says the lawsuit recognizes that the overuse of solitary confinement does not align with the values espoused in a liberal democracy, which prioritize individual rights and liberty.

“The callous disregard that characterized the treatment of marginalized populations in the past has given way to a more humane approach to crime and punishment,” says Conron, principal of Conron Law Professional Corporation.

It’s important to consider what the impact of solitary confinement will be on inmates, the majority of whom will ultimately return to the community, she says.

“I wonder whether forcing these individuals into a situation where they have only their own thoughts and four concrete walls helps to rehabilitate. Will they leave solitary having ‘learned a lesson’? Does this type of incarceration deter future negative conduct? Does it promote a sense of responsibility in them or does it further deepen the sense that they are alone in the world?” Conron says.

In dealing with a population rife with mental health crises, suicide attempts and the potential for violence in the general prison population, she says it may be easier for staff to isolate individuals rather than manage them. But Conron says her experience visiting clients in segregation shows the impact on them can be significant.

“Solitary confinement is an eerie place to be. A sense of madness permeates and hangs in the air,” she says. “The smell between isolated rooms is pungent. Sound echoes, as people yell out. The faces inside the cells sometimes press against the small windows or peer through the food slots, desperate to see or hear something. The people inside are helpless and often without hope.”

Conron says, in her experience, it often has the unintended consequence of increasing the hurt, fear and anger people feel.

“Solitary hurts their sense of self-worth, self-esteem and the value they feel they can provide to the community upon release,” she says. “In a system striving for justice, balancing is necessary. The safety of corrections officers is a top priority, but I believe we can achieve the management of vulnerable or volatile individuals in a way that doesn’t compromise the fundamental human dignity of individuals accused of or convicted of a criminal offence.”

At issue is administrative segregation in which inmates are isolated either to ensure their own safety or that of others in the institution. Critics allege that such isolation in which inmates are kept in tiny cells without human contact for much of the day can cause significant and lasting harm.

The current lawsuit, similar to several others filed in Canada including one already certified against the federal government, alleges the provincial government has been negligent in its use of isolation by leaving prisoners for weeks, months or even years without regard to the consequences.

"The effects of segregation are significant and substantial,'' the statement of claim alleges. "Such damage is often irreversible and will have a substantial and lasting effect on that person's life.''

The representative plaintiff, Conrey Francis, who has been diagnosed with post-traumatic stress disorder and suffers extreme panic attacks, has spent several stints behind bars since 1982, including stretches in solitary confinement, the suit says. In his latest incarceration, Francis, in his early 50s, spent time at the Toronto South Detention Centre from January 2015 until he was acquitted of robbery charges in April 2017.

His mental health in solitary worsened to the point such that he had suicidal thoughts and auditory hallucinations, he alleged.

The lawsuit was initially filed last year on the same day Ontario Ombudsman Paul Dube slammed the province's use of solitary, particularly with regard to those inmates who are mentally ill. In January, the Ontario government and province's human rights authorities announced an agreement to stop placing mentally compromised inmates in solitary barring exceptional circumstances.

The province, which has yet to file a statement of defence, had no immediate comment on the certification decision or claim, which has yet to be tested in court.

However, in an expert opinion filed earlier this year, a psychiatrist hired by the province argues it is not possible to say at what point segregation might cause an inmate lasting harm. Nor is the literature conclusive about the harms solitary can cause to those with mental illness, Dr. Graham Glancy said in his affidavit. Some inmates, he said, might actually improve in isolation.

"One cannot conclude that segregation causes psychological harm," Glancy wrote.

Another court document indicates that Francis spent a total of 10 days in segregation in 2015 for refusing orders to move between units or institutions.

In his certification decision, Justice Paul Perell said inmates or former inmates had to have been alive on April 2015 — two years before the statement of claim was filed — to be included in the class.

"I am satisfied that all the criteria for certification are satisfied," Perell said.

— with files from AdvocateDaily.com

© 2018 The Canadian Press


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