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New legislation around solitary confinement needed: Smith

The Canadian government, in response to recent court rulings, has the perfect opportunity to draft new legislation that restricts the use of solitary confinement in prisons, Toronto criminal lawyer David Smith tells 

Smith, an associate with Hicks Adams LLP, says the flurry of recent legal rulings striking down the use of indefinite solitary confinement was "long overdue."

The British Columbia Supreme Court ruled indefinite periods of solitary confinement are unconstitutional and then suspended its decision, giving Ottawa 12 months to draft new legislation. The government has tabled Bill C-56, which would limit segregation to 21 days, which will drop to 15 days, 18 months after the legislation comes into effect.

Ontario moved to end solitary confinement for mentally ill inmates after the Ontario Human Rights Tribunal issued a consent order mandating the province to end the practice in its institutions. And a Superior Court of Ontario decision also found parts of the segregation statutes in the Corrections and Conditional Release Act unconstitutional. 

"I don't know if we can say it's never appropriate, but periods do need to be reduced, and the ease people find themselves in solitary confinement needs to be changed," Smith says. 

Correctional institutions are being used to "warehouse people" while waiting for a trial or a plea, and "if you have mental health challenges, that exacerbates the situation and then you find yourself in solitary confinement without any human contact, or limited contact, with conditions that have been declared a violation of human rights many times," he says.

Since the provisions were declared unconstitutional, "the government has to do something,” Smith says.

"I don't like the idea of building more jails as a way to stop putting people in solitary confinement — that’s an expensive way of doing things," he says. 

Smith hopes the court rulings and the consent order will spur the government to invest more in mental health initiatives for inmates and for society in general. 

"One would hope that's the tactic that the government takes. I suspect it would cost taxpayers less to deal with this problem at the front end by investing in health care and addiction treatment than spending more on the correctional system," he says.

"I would prefer to see a solution that invests in preventing people from being incarcerated in the first place."

Segregation is not always used for punishment, but "the hole is the hole, and you still have that sensory deprivation," Smith says. "Sometimes it's for the inmate's own protection, perhaps, but it's not a solution that I've ever favoured.”

It’s time that segregation is restricted to "more appropriate circumstances,” he says. 

Inmates are not looked upon sympathetically by society, no matter the offence, Smith says. They're not all the "rape, pillage and plunder" type, but are often jailed for "petty crimes because they have a criminal record, or they've been on a spree as a result of mental health or addiction issues," he says.

While there are those who are authors of their own fate, Smith says there are many more who are poor and without life skills, mentally ill or addicted. 

"There aren't as many bad people as one would think," he says. "These are people who are really struggling and are not having the easiest life.

"We spend so much time housing people in jail without any programming. If we're going to put people in jail, we need to at least try to fix something."

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